Hon. Ramon Jesus P. Paje, in his capacity as Secretary of the Department of Environment and Natural Resources (DENR) v. Hon. Teodoro A. Casiño and Others (Paje v. Casiño), 752 Phil. 498 (2015)

Source

Date03.02.2015

TypeNational

JurisdictionPhilippines

Court / State organSupreme Court of the Philippines

PartiesHon. Ramon Jesus P. Paje, in his capacity as Secretary of the Department of Environment and Natural ...

environment indigenous peoples licensing

Description

The Casiño Group (Teodoro A. Casiño et al.) filed a petition for a Writ of Kalikasan* before the Supreme Court against Redondo Peninsula Energy (RP Energy), the Subic Bay Metropolitan Authority (SBMA), and the Secretary of the Department of Environment and Natural Resources (DENR), Ramon Jesus P. Paje. The petitioners alleged that RP Energy's proposed coal-fired power plant in Subic Bay threatened to cause grave environmental damage. On 31 July 2012, the Supreme Court issued the Writ of Kalikasan and referred the case to the Court of Appeals for hearing, reception of evidence, and rendition of judgment. Before the Court of Appeals, the Casiño Group raised issues concerning the validity of RP Energy's Environmental Compliance Certificate (ECC) and its amendments, as well as the Lease and Development Agreement (LDA) between SBMA and RP Energy. On 30 January 2013, the Court of Appeals denied the privilege of the Writ of Kalikasan for insufficiency of evidence, but nonetheless invalidated the ECC and its first two amendments, as well as the LDA, on procedural and regulatory grounds. Dissatisfied, Paje (in his capacity as DENR Secretary), RP Energy, the Casiño Group, and SBMA filed separate Petitions for Review on Certiorari** before the Supreme Court, which were consolidated. The central issues included whether the Casiño Group could prove that the construction and operation of the power plant would cause grave environmental damage, whether the ECC and its amendments were valid despite procedural irregularities (including the absence of a signature from RP Energy's representative and the use of allegedly inappropriate Environmental Impact Assessment documents), and whether the project complied with the certification precondition under the Indigenous Peoples' Rights Act (IPRA) and the consultation and approval requirements under the Local Government Code (LGC).

Applicable law includes the Rules of Procedure for Environmental Cases (Section 1, Rule 7; Section 15, Rule 7), and the 1987 Constitution of the Republic of the Philippines (Article II, Section 16). Additionally, it makes use of local environmental laws such as DENR Administrative Order No. 2003-30 (DAO 2003-30) (Section 8.3; Section 3(d)), Revised Procedural Manual for the DAO 2003-30 (Revised manual) (Table 1-4), the Local Government Code (LGC) (Section 26; Section 27), RA 8371 (Indigenous Peoples’ Rights Act (IPRA)) (Section 59), and R.A No. 7227 (Bases Conversion and Development Act) (Section 12; Section 13).

The Court of Appeals had initially ruled that the Writ of Kalikasan was denied, alongside nullifying the Lease and Development Agreement (LDA) between SBMA and RP Energy. After appealing it to the Supreme Court, the Court took it upon itself to specify the scope of the Writ of Kalikasan as provided in the Rules of Procedure for Environmental Cases (RPEC) in the preliminary section. It establishes that individuals that invoke the writ based on alleged defects or irregularities must not only allege and prove such defects, they must also provide a causal link between the violation and the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under the Rules. Mere allegations that environmental damage would be inevitable is not enough. Although some of the issues fell outside the proper scope of a Writ of Kalikasan proceeding, the Supreme Court decided to resolve all of them because of the exceptional character and urgency of the case and in order to avoid another round of protracted litigation concerning the project. The issues revolved around (i) whether the Casiño Group had proved that the construction and operation of the power plant would cause grave environmental damage; (ii) whether the ECC was invalid due to the absence of RP Energy's representative's signature in its Statement of Accountability; (iii) whether the first and second amendments to the ECC were invalid because of the alleged failure to conduct a new EIA through the appropriate EIA documents; (iv) whether a Certificate of Non-Overlap (CNO) was required prior to the issuance of the ECC; (v) whether a CNO was required prior to the consummation of the LDA between SBMA and RP Energy; (vi) whether compliance with Section 27, in relation to Section 26, of the LGC was required prior to the implementation of the power plant project; and (vii) whether the validity of the third amendment to the ECC could be resolved in the case.

The Supreme Court ultimately ruled that the Casiño Group failed to prove the existence of a causal link, as their allegations were not sufficiently reliable or trustworthy to establish grave environmental damage, especially since precautions were taken regarding the possible damage. The Court held that the signature was necessary for the validity of the ECC, but found that, under the particular circumstances of the case, the signature requirement had been substantially complied with pro hac vice. The Court further upheld the first and second amendments to the ECC, finding that the DENR reasonably exercised its discretion in requiring an Environmental Performance Report and Management Plan (EPRMP) for the first amendment and a Project Description Report (PDR) for the second amendment. Through these documents, a new environmental impact assessment was conducted in relation to the proposed project modifications. Regarding the fourth and fifth issue, a CNO was not needed regarding the issuance of the ECC, as it is not a license or permit under Section 59 of the IPRA Law. However, the Supreme Court held that a CNO should have been secured before the LDA was executed. Nevertheless, it declined to invalidate the LDA on equitable grounds because this was the first time the Court had laid down the applicable rule of action and there was no showing that SBMA or RP Energy deliberately intended to circumvent Section 59 of the IPRA. On issue 6, it was mentioned that that due to the powers given to SBMA through RA 7227, especially due to their prevailing power over local governments in the Subic Special Economic Zone (SSEZ), complying with the LGC (Sections 26 and 27 specifically), was not necessary. Finally, the validity of the third amendment of the ECC was not brought up during the preliminary conference, and it cannot be resolved without violating the right to due process of RP Energy.

Although biodiversity protection was not the central legal issue in the case, the alleged environmental impacts included harm to aquatic and terrestrial ecosystems, wildlife, and the biological diversity of the Subic Bay area. The case is particularly significant for clarifying the scope and evidentiary requirements of the Writ of Kalikasan. The Supreme Court established that alleged regulatory defects or irregularities must be connected by a causal link, or at least a reasonable connection, to an actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude required under the Rules. This standard is therefore relevant in subsequent environmental and biodiversity-related litigation involving the Writ of Kalikasan.

PDF-file of this case is not available. Furthemore, some footnotes are not properly reflected in the original text of the decision published at the main page of the Supreme Court of the Philippines, that's why they are ommitted (concerns footnotes 155-156, 176-177, 181, 194-195).

* Writ of Kalikasan is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Rules of Procedure for Environmental Cases A.M. No. 09-6-8-SC, April 29, 2010. Part 3, Rule 7, Section 1).

** Review on Certiorari is a mode of appeal to the Supreme Court, generally limited to questions of law.

Full text

752 Phil. 498

EN BANC

[ G.R. No. 207257, February 03, 2015 ]

HON. RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), PETITIONER, VS. HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, RESPONDENTS.

[G.R. NO. 207257] REDONDO PENINSULA ENERGY, INC., PETITIONER, VS. HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND SUBIC BAY METROPOLITAN AUTHORITY, RESPONDENTS. [G.R. NO. 207276] HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. RAFAEL V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON, ET AL., PETITIONERS, [G.R. NO. 207282] RAMON JESUS P. PAJE IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC BAY METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY, INC., RESPONDENTS. [G.R. NO. 207366] SUBIC BAY METROPOLITAN AUTHORITY, PETITIONER, VS. HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO, HON EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, HON. RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES AND REDONDO PENINSULA ENERGY, INC., RESPONDENTS.

D E C I S I O N

DEL CASTILLO, J.:

Before this Court are consolidated Petitions for Review on Certiorari¹ assailing the Decision² dated January 30, 2013 and the Resolution³ dated May 22, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00015, entitled “Hon. Teodoro A. Casiño, et al. v. Hon. Ramon Jesus P. Paje, et al.”

Factual Antecedents In February 2006, Subic Bay Metropolitan Authority (SBMA), a government agency organized and established under Republic Act No. (RA) 7227,⁴ and Taiwan Cogeneration Corporation (TCC) entered into a Memorandum of Understanding (MOU) expressing their intention to build a power plant in Subic Bay which would supply reliable and affordable power to Subic Bay Industrial Park (SBIP).⁵ On July 28, 2006, SBMA and TCC entered into another MOU, whereby TCC undertook to build and operate a coal-fired power plant.⁶ In the said MOU, TCC identified 20 hectares of land at Sitio Naglatore, Mt. Redondo, Subic Bay Freeport Zone (SBFZ) as the suitable area for the project and another site of approximately 10 hectares to be used as an ash pond.⁷ TCC intends to lease the property from SBMA for a term of 50 years with rent fixed at $3.50 per square meter, payable in 10 equal 5-year installments.⁸ On April 4, 2007, the SBMA Ecology Center issued SBFZ Environmental Compliance Certificate (ECC) No. EC-SBFZ-ECC-69-21-500 in favor of Taiwan Cogeneration International Corporation (TCIC), a subsidiary of TCC,⁹ for the construction, installation, and operation of 2x150-MW Circulating Fluidized Bed (CFB) Coal-Fired Thermal Power Plant at Sitio Naglatore.¹⁰ On June 6, 2008, TCC assigned all its rights and interests under the MOU dated July 28, 2006 to Redondo Peninsula Energy, Inc. (RP Energy),¹¹ a corporation duly organized and existing under the laws of the Philippines with the primary purpose of building, owning, and operating power plants in the Philippines, among others.¹² Accordingly, an Addendum to the said MOU was executed by SBMA and RP Energy.¹³ RP Energy then contracted GHD Pty, Ltd. (GHD) to prepare an Environmental Impact Statement (EIS) for the proposed coal-fired power plant and to assist RP Energy in applying for the issuance of an ECC from the Department of Environment and Natural Resources (DENR).¹⁴ On August 27, 2008, the Sangguniang Panglungsod of Olongapo City issued Resolution No. 131, Series of 2008, expressing the city government’s objection to the coal-fired power plant as an energy source and urging the proponent to consider safer alternative sources of energy for Subic Bay.¹⁵ On December 22, 2008, the DENR, through former Secretary Jose L. Atienza, Jr., issued an ECC for the proposed 2x150-MW coal-fired power plant.¹⁶ Sometime thereafter, RP Energy decided to include additional components in its proposed coal-fired power plant. Due to the changes in the project design, which involved the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement, and a 230kV double-circuit transmission line,¹⁷ RP Energy requested the DENR Environmental Management Bureau (DENR-EMB) to amend its ECC.¹⁸ In support of its request, RP Energy submitted to the DENR-EMB an Environmental Performance Report and Management Plan (EPRMP), which was prepared by GHD.¹⁹ On June 8, 2010, RP Energy and SBMA entered into a Lease and Development Agreement (LDA) over a 380,004.456-square meter parcel of land to be used for building and operating the coal-fired power plant.²⁰ On July 8, 2010, the DENR-EMB issued an amended ECC (first amendment) allowing the inclusion of additional components, among others.²¹ Several months later, RP Energy again requested the DENR-EMB to amend the ECC.²² Instead of constructing a 2x150-MW coal-fired power plant, as originally planned, it now sought to construct a 1x300-MW coal-fired power plant.²³ In support of its request, RP Energy submitted a Project Description Report (PDR) to the DENR-EMB.²⁴ On May 26, 2011, the DENR-EMB granted the request and further amended the ECC (second amendment).²⁵ On August 1, 2011, the Sangguniang Panglalawigan of Zambales issued Resolution No. 2011-149, opposing the establishment of a coal-fired thermal power plant at Sitio Naglatore, Brgy. Cawag, Subic, Zambales.²⁶ On August 11, 2011, the Liga ng mga Barangay of Olongapo City issued Resolution No. 12, Series of 2011, expressing its strong objection to the coal-fired power plant as an energy source.²⁷ On July 20, 2012, Hon. Teodoro A. Casiño, Hon. Raymond V. Palatino, Hon. Rafael V. Mariano, Hon. Emerenciana A. De Jesus, Clemente G. Bautista, Jr., Hon. Rolen C. Paulino, Hon. Eduardo Piano, Hon. James de los Reyes, Hon. Aquilino Y. Cortez, Jr., Hon. Sarah Lugerna Lipumano-Garcia, Noraida Velarmino, Bianca Christine Gamboa Espinos, Charo Simons, Gregorio Llorca Magdaraog, Rubelh Peralta, Alex Corpus Hermoso, Rodolfo Sambajon, Rev. Fr. Gerardo Gregorio P. Jorge, Carlito A. Baloy, Ofelia D. Pablo, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and John Carlo delos Reyes (Casiño Group) filed before this Court a Petition for Writ of kalikasan against RP Energy, SBMA, and Hon. Ramon Jesus P. Paje, in his capacity as Secretary of the DENR.²⁸ On July 31, 2012, this Court resolved, among others, to: (1) issue a Writ of kalikasan; and (2) refer the case to the CA for hearing and reception of evidence and rendition of judgment.²⁹ While the case was pending, RP Energy applied for another amendment to its ECC (third amendment) and submitted another EPRMP to the DENR-EMB, proposing the construction and operation of a 2x300-MW coal-fired power plant.³⁰ On September 11, 2012, the Petition for Writ of kalikasan was docketed as CA-G.R. SP No. 00015 and raffled to the Fifteenth Division of the CA.³¹ In the Petition, the Casiño Group alleged, among others, that the power plant project would cause grave environmental damage;³² that it would adversely affect the health of the residents of the municipalities of Subic, Zambales, Morong, Hermosa, and the City of Olongapo;³³ that the ECC was issued and the LDA entered into without the prior approval of the concerned sanggunians as required under Sections 26 and 27 of the Local Government Code (LGC);³⁴ that the LDA was entered into without securing a prior certification from the National Commission on Indigenous Peoples (NCIP) as required under Section 59 of RA 8371 or the Indigenous Peoples’ Rights Act of 1997 (IPRA Law);³⁵ that Section 8.3 of DENR Administrative Order No. 2003-30 (DAO 2003-30) which allows amendments of ECCs is ultra vires because the DENR has no authority to decide on requests for amendments of previously issued ECCs in the absence of a new EIS;³⁶ and that due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energy’s ECC are null and void.³⁷ On October 29, 2012, the CA conducted a preliminary conference wherein the parties, with their respective counsels, appeared except for Hon. Teodoro A. Casiño, Hon. Rafael V. Mariano, Hon. Emerencia A. De Jesus, Clemente G. Bautista, Mario Esquillo, Elle Latinazo, Evangeline Q. Rodriguez, and the SBMA.³⁸ The matters taken up during the preliminary conference were embodied in the CA’s Resolution dated November 5, 2012, to wit:

I. ISSUES

A. Petitioners (Casiño Group)

1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x x x ) and its amendment to 1x300 MW Power Plant, and the Lease and Development Agreement between SBMA and RP Energy complied with the Certification Precondition as required under Section 59 of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (‘IPRA Law,’ x x x);

2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without prior consultation with and approval of the concerned local government units (‘LGUs,’ x x x ), pursuant to Sections 26 and 27 of Republic Act No. 7160 or the Local Government Code;

3. Whether x x x Section 8.3 of DENR Administrative Order No. 2003-30 (‘DAO No. 2003-30,’ x x x ) providing for the amendment of an ECC is null and void for being ultra vires; and

4. Whether x x x the amendment of RP Energy’s ECC under Section 8.3 of DAO No. 2003-30 is null and void.

B. Respondent RP Energy

1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked;

1.1 Whether x x x the same is valid until annulled;

2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300 MW Power Plant;

2.1 Whether x x x the instant Petition is proper;

3. Whether x x x RP Energy complied with all the procedures/requirements for the issuance of the DENR ECC and its amendment;

3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable in the instant case;

4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code is necessary for the issuance of the DENR ECC and its amendments, and what constitutes LGU approval; 5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition;

5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems; and

6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of proper verification and certification of non-forum shopping with respect to some petitioners.

C. Respondent DENR Secretary Paje\

1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code;

2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and

3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid.

II. ADMISSIONS/DENIALS

Petitioners, through Atty. Ridon, admitted all the allegations in RP Energy’s Verified Return, except the following:

1. paragraphs 1.4 to 1.7; 2. paragraphs 1.29 to 1.32; and 3. paragraphs 1.33 to 1.37.

Petitioners made no specific denial with respect to the allegations of DENR Secretary Paje’s Verified Return. x x x

Respondent RP Energy proposed the following stipulations, which were all admitted by petitioners, through Atty. Ridon, viz:

1. The 1x300 MW Power Plant is not yet operational; 2. At present, there is no environmental damage; 3. The 1x300 MW Power Plant project is situated within the Subic Special Economic Zone; and 4. Apart from the instant case, petitioners have not challenged the validity of Section 8.3 of DAO No. 2003-30.

Public respondent DENR Secretary Paje did not propose any matter for stipulation.³⁹

Thereafter, trial ensued.

The Casiño Group presented three witnesses, namely: (1) Raymond V. Palatino, a two-term representative of the Kabataan Partylist in the House of Representatives;⁴⁰ (2) Alex C. Hermoso, the convenor of the Zambales-Olongapo City Civil Society Network, a director of the PREDA⁴¹ Foundation, and a member of the Zambales Chapter of the Kaya Natin Movement and the Zambales Chapter of the People Power Volunteers for Reform;⁴² and (3) Ramon Lacbain, the Vice-Governor of the Province of Zambales.⁴³

RP Energy presented five witnesses, namely: (1) Junisse P. Mercado (Ms. Mercado), an employee of GHD and the Project Director of ongoing projects for RP Energy regarding the proposed power plant project;⁴⁴ (2) Juha Sarkki (Engr. Sarkki), a Master of Science degree holder in Chemical Engineering;⁴⁵ (3) Henry K. Wong, a degree holder of Bachelor of Science Major in Mechanical Engineering from Worcester Polytechnic Institute;⁴⁶ (4) Dr. Ely Anthony R. Ouano (Dr. Ouano), a licensed Chemical Engineer, Sanitary Engineer, and Environmental Planner in the Philippines;⁴⁷ and (5) David C. Evangelista (Mr. Evangelista), a Business Development Analyst working for RP Energy.⁴⁸

SBMA, for its part, presented its Legal Department Manager, Atty. Von F. Rodriguez (Atty. Rodriguez).⁴⁹

The DENR, however, presented no evidence.⁵⁰

Meanwhile, on October 31, 2012, a Certificate of Non-Overlap (CNO) was issued in connection with RP Energy’s application for the 2x300-MW coal-fired power plant.⁵¹

On November 15, 2012, the DENR-EMB granted RP Energy’s application for the third amendment to its ECC, approving the construction and operation of a 2x300-MW coal-fired power plant, among others.⁵²

Ruling of the Court of Appeals

On January 30, 2013, the CA rendered a Decision denying the privilege of the writ of kalikasan and the application for an environment protection order due to the failure of the Casiño Group to prove that its constitutional right to a balanced and healthful ecology was violated or threatened.⁵³ The CA likewise found no reason to nullify Section 8.3 of DAO No. 2003-30. It said that the provision was not ultra vires, as the express power of the Secretary of the DENR, the Director and Regional Directors of the EMB to issue an ECC impliedly includes the incidental power to amend the same.⁵⁴ In any case, the CA ruled that the validity of the said section could not be collaterally attacked in a petition for a writ of kalikasan.⁵⁵

Nonetheless, the CA resolved to invalidate the ECC dated December 22, 2008 for non-compliance with Section 59 of the IPRA Law⁵⁶ and Sections 26 and 27 of the LGC⁵⁷ and for failure of Luis Miguel Aboitiz (Mr. Aboitiz), Director of RP Energy, to affix his signature in the Sworn Statement of Full Responsibility, which is an integral part of the ECC.⁵⁸ Also declared invalid were the ECC first amendment dated July 8, 2010 and the ECC second amendment dated May 26, 2011 in view of the failure of RP Energy to comply with the restrictions set forth in the ECC, which specifically require that “any expansion of the project beyond the project description or any change in the activity x x x shall be subject to a new Environmental Impact Assessment.”⁵⁹ However, as to the ECC third amendment dated November 15, 2012, the CA decided not to rule on its validity since it was not raised as an issue during the preliminary conference.⁶⁰

The CA also invalidated the LDA entered into by SBMA and RP Energy as it was issued without the prior consultation and approval of all the sanggunians concerned as required under Sections 26 and 27 of the LGC,⁶¹ and in violation of Section 59, Chapter VIII of the IPRA Law, which enjoins all departments and other governmental agencies from granting any lease without a prior certification that the area affected does not overlap with any ancestral domain.⁶² The CA noted that no CNO was secured from the NCIP prior to the execution of the LDA,⁶³ and that the CNO dated October 31, 2012 was secured during the pendency of the case and was issued in connection with RP Energy’s application for a 2x300-MW coal-fired power plant.⁶⁴

Thus, the CA disposed of the case in this wise:

WHEREFORE, premises considered, judgment is hereby rendered DENYING the privilege of the writ of kalikasan and the application for an environmental protection order. The prayer to declare the nullity of Section 8.3 of the DENR Administrative Order No. 2003-30 for being ultra vires is DENIED; and the following are all declared INVALID:

1. The Environmental Compliance Certificate (ECC Ref. Code: 0804-011-4021) dated 22 December 2008 issued in favor of respondent Redondo Peninsula Energy, Inc. by former Secretary Jose L. Atienza, Jr. of the Department of Environment and Natural Resources;

2. The ECC first amendment dated 08 July 2010 and ECC second amendment dated 26 May 2011, both issued in favor of respondent Redondo Peninsula Energy, Inc. by OIC Director Atty. Juan Miguel T. Cuna of the Department of Environment and Natural Resources, Environmental Management Bureau; and

3. The Lease and Development Agreement dated 08 June 2010 entered into by respondents Subic Bay Metropolitan Authority and Redondo Peninsula Energy, Inc. involving a parcel of land consisting of 380,004.456 square meters.

SO ORDERED.⁶⁵

The DENR and SBMA separately moved for reconsideration.⁶⁶ RP Energy filed a Motion for Partial Reconsideration,⁶⁷ attaching thereto a signed Statement of Accountability.⁶⁸ The Casiño Group, on the other hand, filed Omnibus Motions for Clarification and Reconsideration.⁶⁹

On May 22, 2013, the CA issued a Resolution⁷⁰ denying the aforesaid motions for lack of merit. The CA opined that the reliefs it granted in its Decision are allowed under Section 15, Rule 7 of the Rules of Procedure for Environmental Cases as the reliefs enumerated therein are broad, comprehensive, and non-exclusive.⁷¹ In fact, paragraph (e) of the said provision allows the granting of “such other reliefs” in consonance with the objective, purpose, and intent of the Rules.⁷² SBMA’s contention that the stoppage of a project for non-compliance with Section 59 of the IPRA Law may only be done by the indigenous cultural communities or indigenous peoples was also brushed aside by the CA as the Casiño Group did not file a case under the IPRA Law but a Petition for a Writ of kalikasan, which is available to all natural or juridical persons whose constitutional right to a balanced and healthful ecology is violated, or threatened to be violated.⁷³ As to RP Energy’s belated submission of a signed Statement of Accountability, the CA gave no weight and credence to it as the belated submission of such document, long after the presentation of evidence of the parties had been terminated, is not in accord with the rules of fair play.⁷⁴ Neither was the CA swayed by the argument that the omitted signature of Luis Miguel Aboitiz is a mere formal defect, which does not affect the validity of the entire document.⁷⁵ The dispositive portion of the ++Resolution reads:

WHEREFORE, premises considered, respondents Subic Bay Metropolitan Authority’s Motion for Reconsideration dated 18 February 2013, Department of Environment and Natural Resources Secretary Ramon Jesus P. Paje’s Motion for Reconsideration dated 19 February 2013, and Redondo Peninsula Energy, Inc.’s Motion for Partial Reconsideration dated 22 February 2013, as well as petitioners’ Omnibus Motions for Clarification and Reconsideration dated 25 February 2013, are all DENIED for lack of merit.

SO ORDERED.⁷⁶

Unsatisfied, the parties appealed to this Court.

The Casiño Group’s arguments

The Casiño Group, in essence, argues that it is entitled to a Writ of kalikasan as it was able to prove that the operation of the power plant would cause environmental damage and pollution, and that this would adversely affect the residents of the provinces of Bataan and Zambales, particularly the municipalities of Subic, Morong, Hermosa, and the City of Olongapo. It cites as basis RP Energy’s EIS, which allegedly admits that acid rain may occur in the combustion of coal;⁷⁷ that the incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to suspended particles from plant operations;⁷⁸ and that increased sulfur oxides (SOx) and nitrogen oxides (NOx) emissions may occur during plant operations.⁷⁹ It also claims that when the SBMA conducted Social Acceptability Policy Consultations with different stakeholders on the proposed power plant, the results indicated that the overall persuasion of the participants was a clear aversion to the project due to environmental, health, economic and socio-cultural concerns.⁸⁰ Finally, it contends that the ECC third amendment should also be nullified for failure to comply with the procedures and requirements for the issuance of the ECC.⁸¹

The DENR’s arguments

The DENR imputes error on the CA in invalidating the ECC and its amendments, arguing that the determination of the validity of the ECC as well as its amendments is beyond the scope of a Petition for a Writ of kalikasan.⁸² And even if it is within the scope, there is no reason to invalidate the ECC and its amendments as these were issued in accordance with DAO No. 2003-30.⁸³ The DENR also insists that contrary to the view of the CA, a new EIS was no longer necessary since the first EIS was still within the validity period when the first amendment was requested, and that this is precisely the reason RP Energy was only required to submit an EPRMP in support of its application for the first amendment.⁸⁴ As to the second amendment, the DENR-EMB only required RP Energy to submit documents to support the proposed revision considering that the change in configuration of the power plant project, from 2x150MW to 1x300MW, was not substantial.⁸⁵ Furthermore, the DENR argues that no permits, licenses, and/or clearances from other government agencies are required in the processing and approval of the ECC.⁸⁶ Thus, non-compliance with Sections 26 and 27 of the LGC as well as Section 59 of the IPRA Law is not a ground to invalidate the ECC and its amendments.⁸⁷ The DENR further posits that the ECC is not a concession, permit, or license but is a document certifying that the proponent has complied with all the requirements of the EIS System and has committed to implement the approved Environmental Management Plan.⁸⁸ The DENR invokes substantial justice so that the belatedly submitted certified true copy of the ECC containing the signature of Mr. Aboitiz on the Statement of Accountability may be accepted and accorded weight and credence.⁸⁹

SBMA’s arguments

For its part, SBMA asserts that since the CA did not issue a Writ of kalikasan, it should not have invalidated the LDA and that in doing so, the CA acted beyond its powers.⁹⁰ SBMA likewise puts in issue the legal capacity of the Casiño Group to impugn the validity of the LDA⁹¹ and its failure to exhaust administrative remedies.⁹² In any case, SBMA contends that there is no legal basis to invalidate the LDA as prior consultation under Sections 26 and 27 of the LGC is not required in this case considering that the area is within the SBFZ.⁹³ Under RA 7227, it is the SBMA which has exclusive jurisdiction over projects and leases within the SBFZ and that in case of conflict between the LGC and RA 7227, it is the latter, a special law, which must prevail.⁹⁴ Moreover, the lack of prior certification from the NCIP is also not a ground to invalidate a contract.⁹⁵ If at all, the only effect of non-compliance with the said requirement under Section 59 of the IPRA Law is the stoppage or suspension of the project.⁹⁶ Besides, the subsequent issuance of a CNO has cured any legal defect found in the LDA.⁹⁷

RP Energy’s arguments

RP Energy questions the propriety of the reliefs granted by the CA considering that it did not issue a writ of kalikasan in favor of the Casiño Group.⁹⁸ RP Energy is of the view that unless a writ of kalikasan is issued, the CA has no power to grant the reliefs prayed for in the Petition.⁹⁹ And even if it does, the reliefs are limited to those enumerated in Section 15, Rule 7 of the Rules of Procedure for Environmental Cases and that the phrase “such other reliefs” in paragraph (e) should be limited only to those of the same class or general nature as the four other reliefs enumerated.¹⁰⁰ As to the validity of the LDA, the ECC and its amendments, the arguments of RP Energy are basically the same arguments interposed by SBMA and the DENR. RP Energy maintains that the ECC and its amendments were obtained in compliance with the DENR rules and regulations;¹⁰¹ that a CNO is not necessary in the execution of an LDA and in the issuance of the ECC and its amendments;¹⁰² and that prior approval of the local governments, which may be affected by the project, are not required because under RA 7227, the decision of the SBMA shall prevail in matters affecting the Subic Special Economic Zone (SSEZ), except in matters involving defense and security.¹⁰³ RP Energy also raises the issue of non-exhaustion of administrative remedies on the part of the Casiño Group.¹⁰⁴

Preliminaries

This case affords us an opportunity to expound on the nature and scope of the writ of kalikasan. It presents some interesting questions about law and justice in the context of environmental cases, which we will tackle in the main body of this Decision.

But we shall first address some preliminary matters, in view of the manner by which the appellate court disposed of this case.

The Rules on the Writ of kalikasan, ¹⁰⁵ which is Part III of the Rules of Procedure for Environmental Cases, ¹⁰⁶ was issued by the Court pursuant to its power to promulgate rules for the protection and enforcement of constitutional rights, ¹⁰⁷ in particular, the individual’s right to a balanced and healthful ecology. 108 Section 1 of Rule 7 provides:

Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

The writ is categorized as a special civil action and was, thus, conceptualized as an extraordinary remedy, which aims to provide judicial relief from threatened or actual violation/s of the constitutional right to a balanced and healthful ecology of a magnitude or degree of damage that transcends political and territorial boundaries.¹⁰⁹ It is intended “to provide a stronger defense for environmental rights through judicial efforts where institutional arrangements of enforcement, implementation and legislation have fallen short”¹¹⁰ and seeks “to address the potentially exponential nature of large-scale ecological threats.”¹¹¹

Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary remedy: (1) there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and (3) the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Expectedly, the Rules do not define the exact nature or degree of environmental damage but only that it must be sufficiently grave, in terms of the territorial scope of such damage, so as to call for the grant of this extraordinary remedy. The gravity of environmental damage sufficient to grant the writ is, thus, to be decided on a case-to-case basis.

If the petitioner successfully proves the foregoing requisites, the court shall render judgment granting the privilege of the writ of kalikasan. Otherwise, the petition shall be denied. If the petition is granted, the court may grant the reliefs provided for under Section 15 of Rule 7, to wit:

Section 15. Judgment. - Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.

It must be noted, however, that the above enumerated reliefs are non-exhaustive. The reliefs that may be granted under the writ are broad, comprehensive and non-exclusive.¹¹²

Prescinding from the above, the DENR, SBMA and RP Energy are one in arguing that the reliefs granted by the appellate court, i.e. invalidating the ECC and its amendments, are improper because it had denied the Petition for Writ of kalikasan upon a finding that the Casiño Group failed to prove the alleged environmental damage, actual or threatened, contemplated under the Rules.

Ordinarily, no reliefs could and should be granted. But the question may be asked, could not the appellate court have granted the Petition for Writ of kalikasan on the ground of the invalidity of the ECC for failure to comply with certain laws and rules?

This question is the starting point for setting up the framework of analysis which should govern writ of kalikasan cases.

In their Petition for Writ of kalikasan,¹¹³ the Casiño Group’s allegations, relative to the actual or threatened violation of the constitutional right to a balanced and healthful ecology, may be grouped into two.

The first set of allegations deals with the actual environmental damage that will occur if the power plant project is implemented. The Casiño Group claims that the construction and operation of the power plant will result in (1) thermal pollution of coastal waters, (2) air pollution due to dust and combustion gases, (3) water pollution from toxic coal combustion waste, and (4) acid deposition in aquatic and terrestrial ecosystems, which will adversely affect the residents of the Provinces of Bataan and Zambales, particularly the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo.

The second set of allegations deals with the failure to comply with certain laws and rules governing or relating to the issuance of an ECC and amendments thereto. The Casiño Group claims that the ECC was issued in violation of (1) the DENR rules on the issuance and amendment of an ECC, particularly, DAO 2003-30 and the Revised Procedural Manual for DAO 2003-30 (Revised Manual), (2) Section 59 of the IPRA Law, and (3) Sections 26 and 27 of the LGC. In addition, it claims that the LDA entered into between SBMA and RP Energy violated Section 59 of the IPRA Law.

As to the first set of allegations, involving actual damage to the environment, it is not difficult to discern that, if they are proven, then the Petition for Writ of kalikasan could conceivably be granted.

However, as to the second set of allegations, a nuanced approach is warranted. The power of the courts to nullify an ECC existed even prior to the promulgation of the Rules on the Writ of kalikasan for judicial review of the acts of administrative agencies or bodies has long been recognized¹¹⁴ subject, of course, to the doctrine of exhaustion of administrative remedies.¹¹⁵

But the issue presented before us is not a simple case of reviewing the acts of an administrative agency, the DENR, which issued the ECC and its amendments. The challenge to the validity of the ECC was raised in the context of a writ of kalikasan case. The question then is, can the validity of an ECC be challenged via a writ of kalikasan?

We answer in the affirmative subject to certain qualifications.

As earlier noted, the writ of kalikasan is principally predicated on an actual or threatened violation of the constitutional right to a balanced and healthful ecology, which involves environmental damage of a magnitude that transcends political and territorial boundaries. A party, therefore, who invokes the writ based on alleged defects or irregularities in the issuance of an ECC must not only allege and prove such defects or irregularities, but must also provide a causal link or, at least, a reasonable connection between the defects or irregularities in the issuance of an ECC and the actual or threatened violation of the constitutional right to a balanced and healthful ecology of the magnitude contemplated under the Rules. Otherwise, the petition should be dismissed outright and the action re-filed before the proper forum with due regard to the doctrine of exhaustion of administrative remedies. This must be so if we are to preserve the noble and laudable purposes of the writ against those who seek to abuse it.

An example of a defect or an irregularity in the issuance of an ECC, which could conceivably warrant the granting of the extraordinary remedy of the writ of kalikasan, is a case where there are serious and substantial misrepresentations or fraud in the application for the ECC, which, if not immediately nullified, would cause actual negative environmental impacts of the magnitude contemplated under the Rules, because the government agencies and LGUs, with the final authority to implement the project, may subsequently rely on such substantially defective or fraudulent ECC in approving the implementation of the project.

To repeat, in cases of defects or irregularities in the issuance of an ECC, it is not sufficient to merely allege such defects or irregularities, but to show a causal link or reasonable connection with the environmental damage of the magnitude contemplated under the Rules. In the case at bar, no such causal link or reasonable connection was shown or even attempted relative to the aforesaid second set of allegations. It is a mere listing of the perceived defects or irregularities in the issuance of the ECC. This would have been sufficient reason to disallow the resolution of such issues in a writ of kalikasan case.

However, inasmuch as this is the first time that we lay down this principle, we have liberally examined the alleged defects or irregularities in the issuance of the ECC and find that there is only one group of allegations, relative to the ECC, that can be reasonably connected to an environmental damage of the magnitude contemplated under the Rules. This is with respect to the allegation that there was no environmental impact assessment relative to the first and second amendments to the subject ECC. If this were true, then the implementation of the project can conceivably actually violate or threaten to violate the right to a healthful and balanced ecology of the inhabitants near the vicinity of the power plant. Thus, the resolution of such an issue could conceivably be resolved in a writ of kalikasan case provided that the case does not violate, or is an exception to the doctrine of exhaustion of administrative remedies and primary jurisdiction.¹¹⁶

As to the claims that the issuance of the ECC violated the IPRA Law and LGC and that the LDA, likewise, violated the IPRA Law, we find the same not to be within the coverage of the writ of kalikasan because, assuming there was non-compliance therewith, no reasonable connection can be made to an actual or threatened violation of the right to a balanced and healthful ecology of the magnitude contemplated under the Rules.

To elaborate, the alleged lack of approval of the concerned sanggunians over the subject project would not lead to or is not reasonably connected with environmental damage but, rather, it is an affront to the local autonomy of LGUs. Similarly, the alleged lack of a certificate precondition that the project site does not overlap with an ancestral domain would not result in or is not reasonably connected with environmental damage but, rather, it is an impairment of the right of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) to their ancestral domains. These alleged violations could be the subject of appropriate remedies before the proper administrative bodies (like the NCIP) or a separate action to compel compliance before the courts, as the case may be. However, the writ of kalikasan would not be the appropriate remedy to address and resolve such issues.

Be that as it may, we shall resolve both the issues proper in a writ of kalikasan case and those which are not, commingled as it were here, because of the exceptional character of this case. We take judicial notice of the looming power crisis that our nation faces. Thus, the resolution of all the issues in this case is of utmost urgency and necessity in order to finally determine the fate of the project center of this controversy. If we were to resolve only the issues proper in a writ of kalikasan case and dismiss those not proper therefor, that will leave such unresolved issues open to another round of protracted litigation. In any case, we find the records sufficient to resolve all the issues presented herein. We also rule that, due to the extreme urgency of the matter at hand, the present case is an exception to the doctrine of exhaustion of administrative remedies.¹¹⁷ As we have often ruled, in exceptional cases, we can suspend the rules of procedure in order to achieve substantial justice, and to address urgent and paramount State interests vital to the life of our nation.

Issues

In view of the foregoing, we shall resolve the following issues:

Whether the Casiño Group was able to prove that the construction and operation of the power plant will cause grave environmental damage. 1.1. The alleged thermal pollution of coastal waters, air pollution due to dust and combustion gases, water pollution from toxic coal combustion waste, and acid deposition to aquatic and terrestrial ecosystems that will be caused by the project. 1.2. The alleged negative environmental assessment of the project by experts in a report generated during the social acceptability consultations. 1.3. The alleged admissions of grave environmental damage in the EIS itself of the project.
Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz, as representative of RP Energy, in the Statement of Accountability of the ECC.
Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact assessment (EIA) because of the utilization of inappropriate EIA documents.
Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the issuance of an ECC and the lack of its prior issuance rendered the ECC invalid.
Whether the Certificate of Non-Overlap, under Section 59 of the IPRA Law, is a precondition to the consummation of the Lease and Development Agreement (LDA) between SBMA and RP Energy and the lack of its prior issuance rendered the LDA invalid.
Whether compliance with Section 27, in relation to Section 26, of the LGC (i.e., approval of the concerned sanggunian requirement) is necessary prior to the implementation of the power plant project.
Whether the validity of the third amendment to the ECC can be resolved in this case.

Ruling

The parties to this case appealed from the decision of the appellate court pursuant to Section 16, Rule 7 of the Rules of Procedure for Environmental Cases, viz:

Section 16. Appeal. - Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact. (Emphasis supplied)

It is worth noting that the Rules on the Writ of kalikasan allow the parties to raise, on appeal, questions of fact — and, thus, constitutes an exception to Rule 45 of the Rules of Court — because of the extraordinary nature of the circumstances surrounding the issuance of a writ of kalikasan. ¹¹⁸ Thus, we shall review both questions of law and fact in resolving the issues presented in this case. We now rule on the above-mentioned issues in detail.

Whether the Casiño Group was able to prove that the construction and operation of the power plant will cause grave environmental damage.

The alleged thermal pollution of coastal waters, air pollution due to dust and combustion gases, water pollution from toxic coal combustion waste, and acid deposition in aquatic and terrestrial ecosystems that will be caused by the project.

As previously noted, the Casiño Group alleged that the construction and operation of the power plant shall adversely affect the residents of the Provinces of Bataan and Zambales, particularly, the Municipalities of Subic, Morong and Hermosa, and the City of Olongapo, as well as the sensitive ecological balance of the area. Their claims of ecological damage may be summarized as follows:

Thermal pollution of coastal waters. Due to the discharge of heated water from the operation of the plant, they claim that the temperature of the affected bodies of water will rise significantly. This will have adverse effects on aquatic organisms. It will also cause the depletion of oxygen in the water. RP Energy claims that there will be no more than a 3°C increase in water temperature but the Casiño Group claims that a 1°C to 2°C rise can already affect the metabolism and other biological functions of aquatic organisms such as mortality rate and reproduction.
Air pollution due to dust and combustion gases. While the Casiño Group admits that Circulating Fluidized Bed (CFB) Coal technology, which will be used in the power plant, is a clean technology because it reduces the emission of toxic gases, it claims that volatile organic compounds, specifically, polycyclic aromatic hydrocarbons (PAHs) will also be emitted under the CFB. PAHs are categorized as pollutants with carcinogenic and mutagenic characteristics. Carbon monoxide, a poisonous gas, and nitrous oxide, a lethal global warming gas, will also be produced.
Water pollution from toxic coal combustion waste. The waste from coal combustion or the residues from burning pose serious environmental risk because they are toxic and may cause cancer and birth defects. Their release to nearby bodies of water will be a threat to the marine ecosystem of Subic Bay. The project is located in a flood-prone area and is near three prominent seismic faults as identified by Philippine Institute of Volcanology and Seismology. The construction of an ash pond in an area susceptible to flooding and earthquake also undermines SBMA’s duty to prioritize the preservation of the water quality in Subic Bay.
Acid deposition in aquatic and terrestrial ecosystems. The power plant will release 1,888 tons of nitrous oxides and 886 tons of sulfur dioxide per year. These oxides are responsible for acid deposition. Acid deposition directly impacts aquatic ecosystems. It is toxic to fish and other aquatic animals. It will also damage the forests near Subic Bay as well as the wildlife therein. This will threaten the stability of the biological diversity of the Subic Bay Freeport which was declared as one of the ten priority sites among the protected areas in the Philippines and the Subic Watershed and Forest Reserve. This will also have an adverse effect on tourism.¹¹⁹

In its January 30, 2013 Decision, the appellate court ruled that the Casiño Group failed to prove the above allegations.

We agree with the appellate court. Indeed, the three witnesses presented by the Casiño Group are not experts on the CFB technology or on environmental matters. These witnesses even admitted on cross-examination that they are not competent to testify on the environmental impact of the subject project. What is wanting in their testimonies is their technical knowledge of the project design/implementation or some other aspects of the project, even those not requiring expert knowledge, vis-à-vis the significant negative environmental impacts which the Casiño Group alleged will occur. Clearly, the Casiño Group failed to carry the onus of proving the alleged significant negative environmental impacts of the project. In comparison, RP Energy presented several experts to refute the allegations of the Casiño Group. As aptly and extensively discussed by the appellate court:

Petitioners¹²⁰ presented three (3) witnesses, namely, Palatino, Hermoso, and Lacbain, all of whom are not experts on the CFB technology or even on environmental matters. Petitioners did not present any witness from Morong or Hermosa. Palatino, a former freelance writer and now a Congressman representing the Kabataan Partylist, with a degree of BS Education major in Social Studies, admitted that he is not a technical expert. Hermoso, a Director of the PREDA foundation which is allegedly involved on environmental concerns, and a member of Greenpeace, is not an expert on the matter subject of this case. He is a graduate of BS Sociology and a practicing business director involved in social development and social welfare services. Lacbain, incumbent Vice-Governor of the Province of Zambales, an accounting graduate with a Master in Public Administration, was a former Banco Filipino teller, entertainment manager, disco manager, marketing manager and college instructor, and is also not an expert on the CFB technology. Lacbain also admitted that he is neither a scientist nor an expert on matters of the environment. Petitioners cited various scientific studies or articles and websites culled from the internet. However, the said scientific studies and articles including the alleged Key Observations and Recommendations on the EIS of the Proposed RPE Project by Rex Victor O. Cruz (Exhibit “DDDDD”) attached to the Petition, were not testified to by an expert witness, and are basically hearsay in nature and cannot be given probative weight. The article purportedly written by Rex Victor O. Cruz was not even signed by the said author, which fact was confirmed by Palatino. Petitioners’ witness, Lacbain, admitted that he did not personally conduct any study on the environmental or health effects of a coal-fired power plant, but only attended seminars and conferences pertaining to climate change; and that the scientific studies mentioned in the penultimate whereas clause of Resolution No. 2011-149 (Exhibit “AAAAA”) of the Sangguniang Panlalawigan of Zambales is based on what he read on the internet, seminars he attended and what he heard from unnamed experts in the field of environmental protection. In his Judicial Affidavit (Exhibit “HHHHH”), Palatino stated that he was furnished by the concerned residents the Key Observations and Recommendations on the EIS of Proposed RPE Project by Rex Victor O. Cruz, and that he merely received and read the five (5) scientific studies and articles which challenge the CFB technology. Palatino also testified that: he was only furnished by the petitioners copies of the studies mentioned in his Judicial Affidavit and he did not participate in the execution, formulation or preparation of any of the said documents; he does not personally know Rex Cruz or any of the authors of the studies included in his Judicial Affidavit; he did not read other materials about coal-fired power plants; he is not aware of the acceptable standards as far as the operation of a coal-fired power plant is concerned; petitioner Velarmino was the one who furnished him copies of the documents in reference to the MOU and some papers related to the case; petitioner Peralta was the one who e-mailed to him the soft copy of all the documents [letters (a) to (o) of his Judicial Affidavit], except the LGU Resolutions; and he has never been at the actual Power Plant project site. It must be noted that petitioners Velarmino and Peralta were never presented as witnesses in this case. In addition, Palatino did not identify the said studies but simply confirmed that the said studies were attached to the Petition. Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of his or her personal knowledge, that is, which are derived from the witness’ own perception. Concomitantly, a witness may not testify on matters which he or she merely learned from others either because said witness was told or read or heard those matters. Such testimony is considered hearsay and may not be received as proof of the truth of what the witness has learned. This is known as the hearsay rule. Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to written, as well as oral statements. There are several exceptions to the hearsay rule under the Rules of Court, among which are learned treatises under Section 46 of Rule 130, viz:

“SEC. 46. Learned treatises. -A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.”

The alleged scientific studies mentioned in the Petition cannot be classified as learned treatises. We cannot take judicial notice of the same, and no witness expert in the subject matter of this case testified, that the writers of the said scientific studies are recognized in their profession or calling as experts in the subject. In stark contrast, respondent RP Energy presented several witnesses on the CFB technology.

In his Judicial Affidavit, witness Wong stated that he obtained a Bachelor of Science, Major in Mechanical Engineering from Worcester Polytechnic Institute; he is a Consulting Engineer of Steam Generators of URS; he was formerly connected with Foster Wheeler where he held the positions of site commissioning engineer, testing engineer, instrumentation and controls engineer, mechanical equipment department manager, director of boiler performance and mechanical design engineering and pulverized coal product director. He explained that: CFB stands for Circulating Fluidized Bed; it is a process by which fuel is fed to the lower furnace where it is burned in an upward flow of combustion air; limestone, which is used as sulfur absorbent, is also fed to the lower furnace along with the fuel; the mixture of fuel, ash, and the boiler bed sorbent material is carried to the upper part of the furnace and into a cyclone separator; the heavier particles which generally consist of the remaining uncombusted fuel and absorbent material are separated in the cyclone separator and are recirculated to the lower furnace to complete the combustion of any unburned particles and to enhance SO2 capture by the sorbent; fly ash and flue gas exit the cyclone and the fly ash is collected in the electrostatic precipitator; furnace temperature is maintained in the range of 800° to 900° C by suitable heat absorbing surface; the fuel passes through a crusher that reduces the size to an appropriate size prior to the introduction into the lower furnace along with the limestone; the limestone is used as a SO2 sorbent which reacts with the sulfur oxides to form calcium sulfate, an inert and stable material; air fans at the bottom of the furnace create sufficient velocity within the steam generator to maintain a bed of fuel, ash, and limestone mixture; secondary air is also introduced above the bed to facilitate circulation and complete combustion of the mixture; the combustion process generates heat, which then heats the boiler feedwater flowing through boiler tube bundles under pressure; the heat generated in the furnace circuit turns the water to saturated steam which is further heated to superheated steam; this superheated steam leaves the CFB boiler and expands through a steam turbine; the steam turbine is directly connected to a generator that turns and creates electricity; after making its way through the steam turbine, the low-pressure steam is exhausted downwards into a condenser; heat is removed from the steam, which cools and condenses into water (condensate); the condensate is then pumped back through a train of feedwater heaters to gradually increase its temperature before this water is introduced to the boiler to start the process all over again; and CFB technology has advantages over pulverized coal firing without backend cleanup systems, i.e., greater fuel flexibility, lower SO2 and NOx emissions. Moreover, Wong testified, inter alia, that: CFBs have a wider range of flexibility so they can environmentally handle a wider range of fuel constituents, mainly the constituent sulfur; and is capable of handling different types of coal within the range of the different fuel constituents; since CFB is the newer technology than the PC or stalker fire, it has better environmental production; 50 percent of the electric generation in the United States is still produced by coal combustion; and the CFB absorbs the sulfur dioxide before it is emitted; and there will be a lower percentage of emissions than any other technology for the coal. In his Judicial Affidavit, Sarrki, stated that: he is the Chief Engineer for Process Concept in Foster Wheeler; he was a Manager of Process Technology for Foster Wheeler from 1995 to 2007; and he holds a Master of Science degree in Chemical Engineering. He explained that: CFB boilers will emit PAHs but only in minimal amounts, while BFB will produce higher PAH emissions; PAH is a natural product of any combustion process; even ordinary burning, such as cooking or driving automobiles, will have some emissions that are not considered harmful; it is only when emissions are of a significant level that damage may be caused; a CFB technology has minimal PAH emissions; the high combustion efficiency of CFB technology, due to long residence time of particles inside the boiler, leads to minimal emissions of PAH; other factors such as increase in the excess air ratio[,] decrease in Ca/S, as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production; and CFB does not cause emissions beyond scientifically acceptable levels. He testified, inter alia, that: the CFB technology is used worldwide; they have a 50% percent share of CFB market worldwide; and this will be the first CFB by Foster Wheeler in the Philippines; Foster Wheeler manufactures and supplies different type[s] of boilers including BFB, but CFB is always applied on burning coal, so they do not apply any BFB for coal firing; CFB has features which have much better combustion efficiency, much lower emissions and it is more effective as a boiler equipment; the longer the coal stays in the combustion chamber, the better it is burned; eight (8) seconds is already beyond adequate but it keeps a margin; in CFB technology, combustion technology is uniform throughout the combustion chamber; high velocity is used in CFB technology, that is vigorous mixing or turbulence; turbulence is needed to get contact between fuel and combustion air; and an important feature of CFB is air distribution. In his Judicial Affidavit, Ouano stated that: he is a licensed Chemical Engineer, Sanitary Engineer and Environmental Planner in the Philippines; he is also a chartered Professional Engineer in Australia and a member of the colleges of environmental engineers and chemical engineers of the Institution of Engineers (Australia); he completed his Bachelor in Chemical Engineering in 1970, Master of Environmental Engineering in 1972 and Doctor of Environmental Engineering in 1974; he also graduated from the University of Sydney Law School with the degree of Master of Environmental Law in 2002 and PhD in Law from Macquarie University in 2007. He explained in his Judicial Affidavit that: the impacts identified and analyzed in the EIA process are all potential or likely impacts; there are a larger number of EIA techniques for predicting the potential environmental impacts; it is important to note that all those methods and techniques are only for predicting the potential environmental impacts, not the real impacts; almost all environmental systems are non-linear and they are subject to chaotic behavior that even the most sophisticated computer could not predict accurately; and the actual or real environmental impact could only be established when the project is in actual operation. He testified, inter alia, that: the higher the temperature the higher the nitrous oxide emitted; in CFB technology, the lower the temperature, the lower is the nitrogen oxide; and it still has a nitrogen oxide but not as high as conventional coal; the CFB is the boiler; from the boiler itself, different pollution control facilities are going to be added; and for the overall plant with the pollution control facilities, the particulate matters, nitrogen oxide and sulfur dioxide are under control. (Citations omitted)¹²¹

We also note that RP Energy controverted in detail the afore-summarized allegations of the Casiño Group on the four areas of environmental damage that will allegedly occur upon the construction and operation of the power plant:

1. On thermal pollution of coastal waters.

As to the extent of the expected rise in water temperature once the power plant is operational, Ms. Mercado stated in her Judicial Affidavit thus:

Q: What was the result of the Thermal Plume Modeling that was conducted for RP Energy?

A: The thermal dispersion modeling results show that largest warming change (0.95°C above ambient) is observed in the shallowest (5 m) discharge scenario. The warmest surface temperature change for the deepest (30 m) scenario is 0.18°C. All the simulated scenarios comply with the DAO 90-35 limit for temperature rise of 3°C within the defined 70 x 70 m mixing zone. The proposed power plant location is near the mouth of Subic Bay, thus the tidal currents influence the behavior of thermal discharge plume. Since the area is well-flushed, mixing and dilution of the thermal discharge is expected.

It also concluded that corals are less likely to be affected by the cooling water discharge as corals may persist in shallow marine waters with temperatures ranging from 18°C to 36°C. The predicted highest temperature of 30.75°C, from the 0.95°C increase in ambient in the shallowest (5 m) discharge scenario, is within this range.¹²²

In the same vein, Dr. Ouano stated in his Judicial Affidavit:

Q: In page 41, paragraph 99 of the Petition, it was alleged that: “x x x a temperature change of 1°C to 2°C can already affect the metabolism and other biological functions of aquatic organisms such as mortality rate and reproduction.” What is your expert opinion, if any, on this matter alleged by the Petitioners?

A: Living organisms have proven time and again that they are very adaptable to changes in the environment. Living organisms have been isolated in volcanic vents under the ocean living on the acidic nutrient soup of sulfur and other minerals emitted by the volcano to sub-freezing temperature in Antarctica. As a general rule, metabolism and reproductive activity [increase] with temperature until a maximum is reached after which [they decline]. For this reason, during winter, animals hibernate and plants become dormant after shedding their leaves. It is on the onset of spring that animals breed and plants bloom when the air and water are warmer. At the middle of autumn when the temperature drops to single digit, whales, fish, birds and other living organisms, which are capable of migrating, move to the other end of the globe where spring is just starting. In the processes of migration, those migratory species have to cross the tropics where the temperature is not just one or two degrees warmer but 10 to 20 degrees warmer.

When discussing the impact of 1 to 2 degrees temperature change and its impact on the ecosystem, the most important factors to consider are – (1) Organism Type – specifically its tolerance to temperature change (mammals have higher tolerance); (2) Base Temperature – it is the temperature over the optimum temperature such that an increase will result in the decline in number of the organisms; (3) Mobility or Space for Migration (i.e., an aquarium with limited space or an open ocean that the organism can move to a space more suited to [a] specific need, such as the migratory birds); and (4) Ecosystem Complexity and Succession. The more complex the ecosystem the more stable it is as succession and adaptation [are] more robust.

Normally, the natural variation in water temperature between early morning to late afternoon could be several degrees (four to five degrees centigrade and up to ten degrees centigrade on seasonal basis). Therefore, the less than one degree centigrade change predicted by the GHD modeling would have minimal impact.¹²³

On cross-examination, Dr. Ouano further explained —

ATTY. AZURA: x x x When you say Organism Type – you mentioned that mammals have a higher tolerance for temperature change? DR. OUANO: Yes. ATTY. AZURA: What about other types of organisms, Dr. Ouano? Fish for example? DR. OUANO: Well, mammals have high tolerance because mammals are warm[-]blooded. Now, when it comes to cold[-]blooded animals the tolerance is much lower. But again when you are considering x x x fish [e]specially in open ocean you have to remember that nature by itself is x x x very brutal x x x where there is always the prey-predator relationship. Now, most of the fish that we have in open sea [have] already a very strong adaptability mechanism. And in fact, Kingman back in 1964 x x x studied the coal reef around the gulf of Oman where the temperature variation on day to day basis varied not by 1 degree to 2 degrees but by almost 12 degrees centigrade. Now, in the Subic Bay area which when you’re looking at it between daytime variation, early dawn when it is cold, the air is cold, the sea temperature, sea water is quite cold. Then by 3:00 o’clock in the afternoon it starts to warm up. So the variation [in the] Subic Bay area is around 2 to 4 degrees by natural variation from the sun as well as from the current that goes around it. So when you are talking about what the report has said of around 1 degree change, the total impact x x x on the fishes will be minimal. x x x ATTY. AZURA: x x x So, you said, Dr. Ouano, that fish, while they have a much lower tolerance for temperature variation, are still very adaptable. What about other sea life, Dr. Ouano, for example, sea reptiles? DR. OUANO: That’s what I said. The most sensitive part of the marine ecology is physically the corals because corals are non-migratory, they are fix[ed]. Second[ly] x x x corals are also highly dependent on sunlight penetration. If they are exposed out of the sea, they die; if they are so deep, they die. And that is why I cited Kingman in his studies of coral adaptability [in] the sea of Oman where there was a very high temperature variation, [they] survived. ATTY. AZURA: Would you be aware, Dr. Ouano, if Kingman has done any studies in Subic Bay? DR. OUANO: Not in Subic Bay but I have reviewed the temperature variation, natural temperature variation from the solar side, the days side as well as the seasonal variation. There are two types of variation since temperatures are very critical. One is the daily, which means from early morning to around 3:00 o’clock, and the other one is seasonal variation because summer, December, January, February are the cold months and then by April, May we are having warm temperature where the temperature goes around 32-33 degrees; Christmas time, it drops to around 18 to 20 degrees so it[']s a variation of around seasonal variation of 14 degrees although some of the fish might even migrate and that is why I was trying to put in corals because they are the ones that are really fix[ed]. They are not in a position to migrate in this season. ATTY. AZURA: To clarify. You said that the most potentially sensitive part of the ecosystem would be the corals. DR. OUANO: Or threatened part because they are the ones [that] are not in a position to migrate. ATTY AZURA: In this case, Dr. Ouano, with respect to this project and the projected temperature change, will the corals in Subic Bay be affected? DR. OUANO: As far as the outlet is concerned, they have established it outside the coral area. By the time it reaches the coral area the temperature variation, as per the GHD study is very small, it[’]s almost negligible. ATTY AZURA: Specifically, Dr. Ouano, what does negligible mean, what level of variation are we talking about? DR. OUANO: If you are talking about a thermometer, you might be talking about, normally about .1 degrees centigrade. That’s the one that you could more or less ascertain. x x x ATTY. AZURA: Dr. Ouano, you mentioned in your answer to the same question, Question 51, that there is a normal variation in water temperature. In fact, you said there is a variation throughout the day, daily and also throughout the year, seasonal. Just to clarify, Dr. Ouano. When the power plant causes the projected temperature change of 1 degree to 2 degrees Celsius this will be in addition to existing variations? What I mean, Dr. Ouano, just so I can understand, how will that work? How will the temperature change caused by the power plant work with the existing variation? DR. OUANO: There is something like what we call the zonal mixing. This is an area of approximately one or two hectares where the pipe goes out, the hot water goes out. So that x x x, we have to accept x x x that [throughout it] the zone will be a disturb[ed] zone. After that one or two hectares park the water temperature is well mixed [so] that the temperature above the normal existing variation now practically drops down to almost the normal level.¹²⁴

2. On air pollution due to dust and combustion gases.

To establish that the emissions from the operation of the power plant would be compliant with the standards under the Clean Air Act,¹²⁵ Ms. Mercado stated in her Judicial Affidavit thus:

271. Q: What was the result of the Air Dispersion Modeling that was conducted for RP Energy? A: The Air Dispersion Modeling predicted that the Power Plant Project will produce the following emissions, which [are] fully compliant with the standards set by DENR:

	Predicted GLC¹²⁶ for 1-hr averaging period	National Ambient Air Quality Guideline Values
SO₂	45.79 µg/Nm₃	340 µg/Nm₃
NO₂	100.8 µg/Nm₃	260 µg/Nm₃
CO	10 µg/Nm₃	35 µg/Nm₃

	Predicted GLC for 8-hr averaging period	National Ambient Air Quality Guideline Values
CO	0.19 mg/ncm	10 µg/Nm₃

	Predicted GLC for 24-hr averaging period	National Ambient Air Quality Guideline Values
SO₂	17.11 µg/Nm₃	180 µg/Nm₃
NO₂	45.79 µg/Nm₃	150 µg/Nm₃

	Predicted GLC for 1-yr averaging period	National Ambient Air Quality Guideline Values
SO₂	6.12 µg/Nm₃	80 µg/Nm₃
NO₂	No standard	---
CO	No standard	---

272. Q: What other findings resulted from the Air Dispersion Modeling, if any?

A: It also established that the highest GLC to Clean Air Act Standards ratio among possible receptors was located 1.6 km North NorthEast (“NNE”) of the Power Plant Project. Further, this ratio was valued only at 0.434 or less than half of the upper limit set out in the Clean Air Act. This means that the highest air ambient quality disruption will happen only 1.6 km NNE of the Power Plant Project, and that such disruption would still be compliant with the standards imposed by the Clean Air Act.¹²⁷

The Casiño Group argued, however, that, as stated in the EIS, during upset conditions, significant negative environmental impact will result from the emissions. This claim was refuted by RP Energy’s witness during cross-examination:

ATTY. AZURA: If I may refer you to another page of the same annex, Ms. Mercado, that’s page 202 of the same document, the August 2012. Fig. 2-78 appears to show, there’s a Table, Ms. Mercado, the first table, the one on top appears to show a comparison in normal and upset conditions. I noticed, Ms. Mercado, that the black bars are much higher than the bars in normal condition. Can you state what this means? MS. MERCADO: It means there are more emissions that could potentially be released when it is under upset condition. ATTY. AZURA: I also noticed, Ms. Mercado, at the bottom part of this chart there are Receptor IDs, R1, R2, R3 and so forth and on page 188 of this same document, Annex “9-Mercado,” there is a list identifying these receptors, for example, Receptor 6, Your Honor, appears to have been located in Olongapo City, Poblacion. Just so I can understand, Ms. Mercado, does that mean that if upset condition[s] were to occur, the Olongapo City Poblacion will be affected by the emissions? MS. MERCADO: All it means is that there will be higher emissions and a higher ground concentration. But you might want to also pay attention to the “y axis,” it says there GLC/CAA [Ground Level Concentration/Clean Air Act limit]. So it means that even under upset conditions… say for R6, the ground level concentration for upset condition is still around .1 or 10% percent only of the Clean Air Act limit. So it’s still much lower than the limit. ATTY. AZURA: But that would mean, would it not, Ms. Mercado, that in the event of upset conditions[,] emissions would increase in the Olongapo City Poblacion? MS. MERCADO: Not emissions will increase. The emissions will be the same but the ground level concentration, the GLC, will be higher if you compare normal versus upset. But even if it[’]s under upset conditions, it is still only around 10% percent of the Clean Air Act Limit. x x x x J. LEAGOGO: So you are trying to impress upon this Court that even if the plant is in an upset condition, it will emit less than what the national standards dictate? MS. MERCADO: Yes, Your Honor.¹²⁸

With respect to the claims that the power plant will release dangerous PAHs and CO, Engr. Sarrki stated in his Judicial Affidavit thus:

Q: In page 42, paragraph 102 of the Petition, the Petitioners alleged that Volatile Organic Compounds (“VOC”) specifically Polycyclic Aromatic Hydrocarbon (“PAH”) will be emitted even by CFB boilers. What can you say about this?

A: Actually, the study cited by the Petitioners does not apply to the present case because it does not refer to CFB technology. The study refers to a laboratory-scale tubular Bubbling Fluidized Bed (“BFB”) test rig and not a CFB. CFB boilers will emit PAHs but only in minimal amounts. Indeed, a BFB will produce higher PAH emissions. x x x x

Q: Why can the study cited by Petitioners not apply in the present case?

A: The laboratory-scale BFB used in the study only has one (1) air injection point and does not replicate the staged-air combustion process of the CFB that RP Energy will use. This staged-air process includes the secondary air. Injecting secondary air into the system will lead to more complete combustion and inhibits PAH production. There is a study entitled “Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System” by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley found in the Journal of Hazardous Materials B84 (2001) where the findings are discussed.

Also, the small-scale test rig utilized in the study does not simulate the process conditions (hydrodynamics, heat transfer characteristics, solid and gas mixing behavior, etc.) seen in a large scale utility boiler, like those which would be utilized by the Power Plant Project.

x x x x

Q: Aside from residence time of particles and secondary air, what other factors, if any, reduce PAH production?

A: Increase in the excess air ratio will also minimize PAH production. Furthermore, decrease in Calcium to Sulfur moral ratio (“Ca/S”), as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production. This is also based on the study entitled “Polycyclic Aromatic Hydrocarbon (PAH) Emissions from a Coal-Fired Pilot FBC System” by Kunlei Liu, Wenjun Han, Wei-Ping Pan, John T. Riley.

In RP Energy’s Power Plant Project, the projected coal to be utilized has low sulfur and chlorine contents minimizing PAH production. Also, due to optimum conditions for the in-furnace SO2 capture, the Ca/S will be relatively low, decreasing PAH production.

Q: In paragraph 104 of the Petition, it was alleged that “Carbon monoxide (CO), a poisonous, colorless and odorless gas is also produced when there is partial oxidation or when there is not enough oxygen (O2) to form carbon dioxide (CO2).” What can you say about this?

A: CFB technology reduces the CO emissions of the Power Plant Project to safe amounts. In fact, I understand that the projected emissions level of the Power Plant Project compl[ies] with the International Finance Corporation (“IFC”) standards. Furthermore, characteristics of CFB technology such as long residence time, uniform temperature and high turbulence provide an effective combustion environment which results [in] lower and safer CO emissions.

Q: I have no further questions for you at the moment. Is there anything you wish to add to the foregoing?

A: Yes. PAH is a natural product of ANY combustion process. Even ordinary burning, such as cooking or driving automobiles, will have some emissions that are not considered harmful. It is only when emissions are of a significant level that damage may be caused.

Given that the Power Plant Project will utilize CFB technology, it will have minimal PAH emissions. The high combustion efficiency of CFB technology, due to the long residence time of particles inside the boiler, leads to the minimal emissions of PAH. Furthermore, other factors such as increase in the excess air ratio, decrease in Ca/S, as well as decrease in the sulfur and chlorine contents of coal will likewise minimize PAH production. CFB does not cause emissions beyond scientifically acceptable levels, and we are confident it will not result in the damage speculated by the Petitioners.¹²⁹

3. On water pollution from toxic coal combustion waste.

With regard to the claim that coal combustion waste produced by the plant will endanger the health of the inhabitants nearby, Dr. Ouano stated in his Judicial Affidavit thus:

Q: In page 43, paragraph 110 of the Petition, it was alleged that: “[s]olid coal combustion waste is highly toxic and is said to cause birth defects and cancer risks among others x x x.” What is your expert opinion, if any, on this matter alleged by the Petitioners?

A: Coal is geologically compressed remains of living organisms that roamed the earth several million years ago. In the process of compression, some of the minerals in the soil, rocks or mud, the geologic media for compression, are also imparted into the compressed remains. If the compressing media of mud, sediments and rocks contain high concentration of mercury, uranium, and other toxic substances, the coal formed will likewise contain high concentration of those substances. If the compressing materials have low concentration of those substances, then the coal formed will likewise have low concentration of those substances. If the coal does not contain excessive quantities of toxic substances, the solid residues are even used in agriculture to supply micronutrients and improve the potency of fertilizers. It is used freely as a fill material in roads and other construction activities requiring large volume of fill and as additive in cement manufacture. After all, diamonds that people love to hang around their necks and keep close to the chest are nothing more than the result of special geologic action, as those in volcanic pipes on coal.¹³⁰

RP Energy further argued, a matter which the Casiño Group did not rebut or refute, that the waste generated by the plant will be properly handled, to wit:

4.1.49 When coal is burned in the boiler furnace, two by-products are generated - bottom and fly ash. Bottom ash consists of large and fused particles that fall to the bottom of the furnace and mix with the bed media. Fly ash includes fine-grained and powdery particles that are carried away by flue gas into the electrostatic precipitator, which is then sifted and collected. These by-products are non-hazardous materials. In fact, a coal power plant’s Fly Ash, Bottom Ash and Boiler Slag have consequent beneficial uses which “generate significant environmental, economic, and performance benefits.” Thus, fly ash generated during the process will be sold and transported to cement manufacturing facilities or other local and international industries.

4.1.50 RP Energy shall also install safety measures to insure that waste from burning of coal shall be properly handled and stored.

4.1.51 Bottom ash will be continuously collected from the furnace and transferred through a series of screw and chain conveyors and bucket elevator to the bottom ash silo. The collection and handling system is enclosed to prevent dust generation. Discharge chutes will be installed at the base of the bottom ash silo for unloading. Open trucks will be used to collect ash through the discharge chutes. Bottom ash will be sold, and unsold ash will be stored in ash cells. A portion of the bottom ash will be reused as bed material through the installation of a bed media regeneration system (or ash recycle). Recycled bottom ash will be sieved using a vibrating screen and transported to a bed material surge bin for re-injection into the boiler.

4.1.52 Fly ash from the electrostatic precipitator is pneumatically removed from the collection hopper using compressed air and transported in dry state to the fly ash silo. Two discharge chutes will be installed at the base of the fly ash silo. Fly ash can either be dry-transferred through a loading spout into an enclosed lorry or truck for selling, re-cycling, or wet-transferred through a wet unloader into open dump trucks and transported to ash cells. Fly ash discharge will operate in timed cycles, with an override function to achieve continuous discharge if required. Fly ash isolation valves in each branch line will prevent leakage and backflow into non-operating lines.

4.1.53 Approximately 120,000m² will be required for the construction of the ash cell. Ash will be stacked along the sloping hill, within a grid of excavations (i.e. cells) with a 5m embankment. Excavated soils will be used for embankment construction and backfill. To prevent infiltration [of] ash deposits into the groundwater, a clay layer with minimum depth of 400mm will be laid at the base of each cell. For every 1-m depth of ash deposit, a 10-cm soil backfill will be applied to immobilize ash and prevent migration via wind. Ash cell walls will be lined with high-density polyethylene to prevent seepage. This procedure and treatment method is in fact suitable for disposal of toxic and hazardous wastes although fly ash is not classified as toxic and hazardous materials.¹³¹

Anent the claims that the plant is susceptible to earthquake and landslides, Dr. Ouano testified thus:

J. LEAGOGO:

In terms of fault lines, did you study whether this project site is in any fault line?

DR. OUANO:

There are some fault lines and in fact, in the Philippines it is very difficult to find an area except Palawan where there is no fault line within 20 to 30 [kilometers]. But then fault lines as well as earthquakes really [depend] upon your engineering design. I mean, Sto. Tomas University has withstood all the potential earthquakes we had in Manila[,] even sometimes it[’]s intensity 8 or so because the design for it back in 1600 they are already using what we call floating foundation. So if the engineering side for it[,] technology is there to withstand the expected fault line [movement]. J. LEAGOGO: What is the engineering side of the project? You said UST is floating. DR. OUANO: The foundation, that means to say you don’t break… J. LEAGOGO: Floating foundation. What about this, what kind of foundation? DR. OUANO: It will now depend on their engineering design, the type of equipment… J. LEAGOGO: No, but did you read it in their report? DR. OUANO: It[’]s not there in their report because it will depend on the supplier, the equipment supplier. J. LEAGOGO: So it[’]s not yet there? DR. OUANO: It[’]s not yet there in the site but it is also covered in our Building Code what are the intensities of earthquakes expected of the different areas in the Philippines. J. LEAGOGO: Have you checked our geo-hazard maps in the Philippines to check on this project site? DR. OUANO: Yes. It is included there in the EIA Report. J. LEAGOGO: It[’]s there? DR. OUANO: It[’]s there.¹³²

4. On acid deposition in aquatic and terrestrial ecosystems. Relative to the threat of acid rain, Dr. Ouano stated in his Judicial Affidavit, thus:

Q: In page 44, paragraph 114 of the Petition, it was alleged that “the coal-fired power plant will release 1,888 tons of nitrous oxides (NOx) per year and 886 tons of sulfur dioxide (SO2) per year. These oxides are the precursors to the formation of sulfuric acid and nitric acid which are responsible for acid deposition.” What is your expert opinion on this matter alleged by the Petitioners?

A: NO2 is found in the air, water and soil from natural processes such as lightning, bacterial activities and geologic activities as well as from human activities such as power plants and fertilizer usage in agriculture. SO2 is also found in air, water and soil from bacterial, geologic and human activities.

NO2 and SO2 in the air are part of the natural nitrogen and sulfur cycle to widely redistribute and recycle those essential chemicals for use by plants. Without the NO2 and SO2 in the air, plant and animal life would be limited to small areas of this planet where nitrogen and sulfur are found in abundance. With intensive agricultural practices, nitrogen and sulfur are added in the soil as fertilizers.

Acid rain takes place when the NO2 and SO2 concentration are excessive or beyond those values set in the air quality standards. NO2 and SO2 in the air in concentrations lower than those set in the standards have beneficial effect to the environment and agriculture and are commonly known as micronutrients.¹³³

On clarificatory questions from the appellate court, the matter was further dissected thus:

iJ. LEAGOGO: x x x The project will release 1,888 tons of nitrous oxide per year. And he said, yes; that witness answered, yes, it will produce 886 tons of sulfur dioxide per year. And he also answered yes, that these oxides are the precursors to the formation of sulfuric acid and nitric acid. Now my clarificatory question is, with this kind of releases there will be acid rain? DR. OUANO: No. J. LEAGOGO: Why? DR. OUANO: Because it[’]s so dilute[d]. J. LEAGOGO: It will? DR. OUANO: Because the acid concentration is so dilute[d] so that it is not going to cause acid rain. J. LEAGOGO: The acid concentration is so diluted that it will not cause acid rain? DR. OUANO: Yes. J. LEAGOGO: What do you mean it[’]s so diluted? How will it be diluted? DR. OUANO: Because it[’]s going to be mixed with the air in the atmosphere; diluted in the air in the atmosphere. And besides this 886 tons, this is not released in one go, it is released almost throughout the year. J. LEAGOGO: You also answered in Question No. 61, “acid rain takes place when the NO2 AND SO2 concentration are excessive.” So when do you consider it as excessive? DR. OUANO: That is something when you are talking about acid… J. LEAGOGO: In terms of tons of nitrous oxide and tons of sulfur oxide, when do you consider it as excessive? DR. OUANO: It is in concentration not on tons weight, Your Honor. J. LEAGOGO: In concentration? DR. OUANO: In milligrams per cubic meter, milligrams per standard cubic meter. J. LEAGOGO: So being an expert, what will be the concentration of this kind of 1,888 tons of nitrous oxide? What will be the concentration in terms of your…? DR. OUANO: If the concentration is in excess of something like 8,000 micrograms per standard cubic meters, then there is already potential for acid rain. J. LEAGOGO: I am asking you, Dr. Ouano, you said it will release 1,888 tons of nitrous oxide? DR. OUANO: Yes. J. LEAGOGO: In terms of concentration, what will that be? DR. OUANO: In terms of the GHD study that will result [in] 19 milligrams per standard cubic meters and the time when acid rain will start [is when the concentration gets] around 8,000 milligrams per standard cubic meters. So we have 19 compared to 8,000. So we are very, very safe. J. LEAGOGO: What about SO2? DR. OUANO: SO2, we are talking about ... you won’t mind if I go to my codigo. For sulfur dioxide this acid rain most likely will start at around 7,000 milligrams per standard cubic meter but then … sorry, it[’]s around 3,400 micrograms per cubic meter. That is the concentration for sulfur dioxide, and in our plant it will be around 45 micrograms per standard cubic meter. So the acid rain will start at 3,400 and the emission is estimated here to result to concentration of 45.7 micrograms. J. LEAGOGO: That is what GHD said in their report. DR. OUANO: Yes. So that is the factor of x x x safety that we have.¹³⁴

Apart from the foregoing evidence, we also note that the above and other environmental concerns are extensively addressed in RP Energy’s Environmental Management Plan or Program (EMP). The EMP is “a section in the EIS that details the prevention, mitigation, compensation, contingency and monitoring measures to enhance positive impacts and minimize negative impacts and risks of a proposed project or undertaking."¹³⁵ One of the conditions of the ECC is that RP Energy shall strictly comply with and implement its approved EMP. The Casiño Group failed to contest, with proof, the adequacy of the mitigating measures stated in the aforesaid EMP. In upholding the evidence and arguments of RP Energy, relative to the lack of proof as to the alleged significant environmental damage that will be caused by the project, the appellate court relied mainly on the testimonies of experts, which we find to be in accord with judicial precedents. Thus, we ruled in one case:

Although courts are not ordinarily bound by testimonies of experts, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which serve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effects (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.¹³⁶

Hence, we sustain the appellate court’s findings that the Casiño Group failed to establish the alleged grave environmental damage which will be caused by the construction and operation of the power plant.

In another vein, we, likewise, agree with the observations of the appellate court that the type of coal which shall be used in the power plant has important implications as to the possible significant negative environmental impacts of the subject project.¹³⁷ However, there is no coal supply agreement, as of yet, entered into by RP Energy with a third-party supplier. In accordance with the terms and conditions of the ECC and in compliance with existing environmental laws and standards, RP Energy is obligated to make use of the proper coal type that will not cause significant negative environmental impacts.

The alleged negative environmental assessment of the project by experts in a report generated during the social acceptability consultations

The Casiño Group also relies heavily on a report on the social acceptability process of the power plant project to bolster its claim that the project will cause grave environmental damage. We purposely discuss this matter in this separate subsection for reasons which will be made clear shortly.

But first we shall present the pertinent contents of this report.

According to the Casiño Group, from December 7 to 9, 2011, the SBMA conducted social acceptability policy consultations with different stakeholders on RP Energy’s proposed 600 MW coal plant project at the Subic Bay Exhibition and Convention Center. The results thereof are contained in a document prepared by SBMA entitled “Final Report: Social Acceptability Process for RP Energy, Inc.’s 600-MW Coal Plant Project” (Final Report). We note that SBMA adopted the Final Report as a common exhibit with the Casiño Group in the course of the proceedings before the appellate court.

The Final Report stated that there was a clear aversion to the concept of a coal-fired power plant from the participants. Their concerns included environmental, health, economic and socio-cultural factors. Pertinent to this case is the alleged assessment, contained in the Final Report, of the potential effects of the project by three experts: (1) Dr. Rex Cruz (Dr. Cruz), Chancellor of the University of the Philippines, Los Baños and a forest ecology expert, (2) Dr. Visitacion Antonio, a toxicologist, who related information as to public health; and (3) Andre Jon Uychiaco, a marine biologist.

The Final Report stated these experts’ alleged views on the project, thus:

IV. Experts’ Opinion x x x x

The specialists shared the judgment that the conditions were not present to merit the operation of a coal-fired power plant, and to pursue and carry out the project with confidence and assurance that the natural assets and ecosystems within the Freeport area would not be unduly compromised, or that irreversible damage would not occur and that the threats to the flora and fauna within the immediate community and its surroundings would be adequately addressed.

The three experts were also of the same opinion that the proposed coal plant project would pose a wide range of negative impacts on the environment, the ecosystems and human population within the impact zone.

The specialists likewise deemed the Environment Impact Assessment (EIA) conducted by RPEI to be incomplete and limited in scope based on the following observations:

The assessment failed to include areas 10km. to 50km. from the operation site, although according to the panel, sulfur emissions could extend as far as 40-50 km.
The EIA neglected to include other forests in the Freeport in its scope and that there were no specific details on the protection of the endangered flora and endemic fauna in the area. Soil, grassland, brush land, beach forests and home gardens were also apparently not included in the study.
The sampling methods used in the study were limited and insufficient for effective long-term monitoring of surface water, erosion control and terrestrial flora and fauna.

The specialists also discussed the potential effects of an operational coal-fired power plant [on] its environs and the community therein. Primary among these were the following:

i. Formation of acid rain, which would adversely affect the trees and vegetation in the area which, in turn, would diminish forest cover. The acid rain would apparently worsen the acidity of the soil in the Freeport.

ii. Warming and acidification of the seawater in the bay, resulting in the bio-accumulation of contaminants and toxic materials which would eventually lead to the overall reduction of marine productivity.

iii. Discharge of pollutants such as Nitrous Oxide, Sodium Oxide, Ozone and other heavy metals such as mercury and lead to the surrounding region, which would adversely affect the health of the populace in the vicinity.

V. Findings

Based on their analyses of the subject matter, the specialists recommended that the SBMA re-scrutinize the coal-fired power plant project with the following goals in mind:

To ensure its coherence and compatibility to [the] SBMA mandate, vision, mission and development plans, including its Protected Area Management Plan;
To properly determine actual and potential costs and benefits;
To effectively determine the impacts on environment and health; and
To ensure a complete and comprehensive impacts zone study.

The specialists also urged the SBMA to conduct a Comprehensive Cost And Benefit Analysis Of The Proposed Coal Plant Project Relative To Each Stakeholder Which Should Include The Environment As Provider Of Numerous Environmental Goods And Services.

They also recommended an Integrated/Programmatic Environmental Impact Assessment to accurately determine the environmental status of the Freeport ecosystem as basis and reference in evaluating future similar projects. The need for a more Comprehensive Monitoring System for the Environment and Natural Resources was also reiterated by the panel.¹³⁸

Of particular interest are the alleged key observations of Dr. Cruz on the EIS prepared by RP Energy relative to the project:

Key Observations and Recommendations on the EIS of Proposed RPE Project Rex Victor O. Cruz Based on SBMA SAP on December 7-9, 2011

1. The baseline vegetation analysis was limited only within the project site and its immediate vicinity. No vegetation analysis was done in the brushland areas in the peninsula which is likely to be affected in the event acid rain forms due to emissions from the power plant.

2. The forest in the remaining forests in the Freeport was not considered as impact zone as indicated by the lack of description of these forests and the potential impacts the project might have on these forests. This appears to be a key omission in the EIS considering that these forests are well within 40 to 50 km away from the site and that there are studies showing that the impacts of sulphur emissions can extend as far as 40 to 50 km away from the source.

3. There are 39 endemic fauna and 1 endangered plant species (Molave) in the proposed project site. There will be a need to make sure that these species are protected from being damaged permanently in wholesale. Appropriate measures such as ex situ conservation and translocation if feasible must be implemented.

4. The Project site is largely in grassland interspersed with some trees. These plants if affected by acid rain or by sulphur emissions may disappear and have consequences on the soil properties and hydrological processes in the area. Accelerated soil erosion and increased surface runoff and reduced infiltration of rainwater into the soil.

5. The rest of the peninsula is covered with brushland but were never included as part of the impact zone.

6. There are home gardens along the coastal areas of the site planted to ornamental and agricultural crops which are likely to be affected by acid rain.

7. There is also a beach forest dominated by aroma, talisai and agoho which will likely be affected also by acid rain.

8. There are no Environmentally Critical Areas within the 1 km radius from the project site. However, the Olongapo Watershed Forest Reserve, a protected area is approximately 10 km southwest of the project site. Considering the prevailing wind movement in the area, this forest reserve is likely to be affected by acid rain if it occurs from the emission of the power plant. This forest reserve is however not included as part of the potential impact area.

9. Soil in the project site and the peninsula is thin and highly acidic and deficient in NPK with moderate to severe erosion potential. The sparse vegetation cover in the vicinity of the project site is likely a result of the highly acidic soil and the nutrient deficiency. Additional acidity may result from acid rain that may form in the area which could further make it harder for the plants to grow in the area that in turn could exacerbate the already severe erosion in the area.

10. There is a need to review the proposal to ensure that the proposed project is consistent with the vision for the Freeport as enunciated in the SBMA Master Plan and the Protected Area Management Plan. This will reinforce the validity and legitimacy of these plans as a legitimate framework for screening potential locators in the Freeport. It will also reinforce the trust and confidence of the stakeholders on the competence and authority of the SBMA that would translate in stronger popular support to the programs implemented in the Freeport.

11. The EGF and Trust Fund (Table 5.13) should be made clear that the amounts are the minimum amount and that adequate funds will be provided by the proponent as necessary beyond the minimum amounts. Furthermore the basis for the amounts allocated for the items (public liability and rehabilitation) in Trust Fund and in EGF (tree planting and landscaping, artificial reef establishment) must be clarified. The specific damages and impacts that will be covered by the TF and EGF must also be presented clearly at the outset to avoid protracted negotiations in the event of actual impacts occurring in the future.

12. The monitoring plan for terrestrial flora and fauna is not clear on the frequency of measurement. More importantly, the proposed method of measurement (sampling transect) while adequate for estimating the diversity of indices for benchmarking is not sufficient for long[-]term monitoring. Instead, long[-]term monitoring plots (at least 1 hectare in size) should be established to monitor the long[-]term impacts of the project on terrestrial flora and fauna.

13. Since the proposed monitoring of terrestrial flora and fauna is limited to the vicinity of the project site, it will be useful not only for mitigating and avoiding unnecessary adverse impacts of the project but also for improving management decisions if long[-]term monitoring plots for the remaining natural forests in the Freeport are established. These plots will also be useful for the study of the dynamic interactions of terrestrial flora and fauna with climate change, farming and other human activities and the resulting influences on soil, water, biodiversity, and other vital ecosystem services in the Freeport.¹³⁹

We agree with the appellate court that the alleged statements by these experts cannot be given weight because they are hearsay evidence. None of these alleged experts testified before the appellate court to confirm the pertinent contents of the Final Report. No reason appears in the records of this case as to why the Casiño Group failed to present these expert witnesses. We note, however, that these statements, on their face, especially the observations of Dr. Cruz, raise serious objections to the environmental soundness of the project, specifically, the EIS thereof. It brings to fore the question of whether the Court can, on its own, compel the testimonies of these alleged experts in order to shed light on these matters in view of the right at stake — not just damage to the environment but the health, well-being and, ultimately, the lives of those who may be affected by the project. The Rules of Procedure for Environmental Cases liberally provide the courts with means and methods to obtain sufficient information in order to adequately protect or safeguard the right to a healthful and balanced ecology. In Section 6 (l)¹⁴⁰ of Rule 3 (Pre-Trial), when there is a failure to settle, the judge shall, among others, determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae). While, in Section 12¹⁴¹ of Rule 7 (Writ of kalikasan), a party may avail of discovery measures: (1) ocular inspection and (2) production or inspection of documents or things. The liberality of the Rules in gathering and even compelling information, specifically with regard to the Writ of kalikasan, is explained in this wise:

[T]he writ of kalikasan was refashioned as a tool to bridge the gap between allegation and proof by providing a remedy for would-be environmental litigants to compel the production of information within the custody of the government. The writ would effectively serve as a remedy for the enforcement of the right to information about the environment. The scope of the fact-finding power could be: (1) anything related to the issuance, grant of a government permit issued or information controlled by the government or private entity and (2) [i]nformation contained in documents such as environmental compliance certificate (ECC) and other government records. In addition, the [w]rit may also be employed to compel the production of information, subject to constitutional limitations. This function is analogous to a discovery measure, and may be availed of upon application for the writ.¹⁴²

Clearly, in environmental cases, the power to appoint friends of the court in order to shed light on matters requiring special technical expertise as well as the power to order ocular inspections and production of documents or things evince the main thrust of, and the spirit behind, the Rules to allow the court sufficient leeway in acquiring the necessary information to rule on the issues presented for its resolution, to the end that the right to a healthful and balanced ecology may be adequately protected. To draw a parallel, in the protection of the constitutional rights of an accused, when life or liberty is at stake, the testimonies of witnesses may be compelled as an attribute of the Due Process Clause. Here, where the right to a healthful and balanced ecology of a substantial magnitude is at stake, should we not tread the path of caution and prudence by compelling the testimonies of these alleged experts?

After due consideration, we find that, based on the statements in the Final Report, there is no sufficiently compelling reason to compel the testimonies of these alleged expert witnesses for the following reasons.

First, the statements are not sufficiently specific to point to us a flaw (or flaws) in the study or design/implementation (or some other aspect) of the project which provides a causal link or, at least, a reasonable connection between the construction and operation of the project vis-à-vis potential grave environmental damage. In particular, they do not explain why the Environmental Management Plan (EMP) contained in the EIS of the project will not adequately address these concerns.

Second, some of the concerns raised in the alleged statements, like acid rain, warming and acidification of the seawater, and discharge of pollutants were, as previously discussed, addressed by the evidence presented by RP Energy before the appellate court. Again, these alleged statements do not explain why such concerns are not adequately covered by the EMP of RP Energy.

Third, the key observations of Dr. Cruz, while concededly assailing certain aspects of the EIS, do not clearly and specifically establish how these omissions have led to the issuance of an ECC that will pose significant negative environmental impacts once the project is constructed and becomes operational. The recommendations stated therein would seem to suggest points for improvement in the operation and monitoring of the project, but they do not clearly show why such recommendations are indispensable for the project to comply with existing environmental laws and standards, or how non-compliance with such recommendations will lead to an environmental damage of the magnitude contemplated under the writ of kalikasan. Again, these statements do not state with sufficient particularity how the EMP in the EIS failed to adequately address these concerns.

Fourth, because the reason for the non-presentation of the alleged expert witnesses does not appear on record, we cannot assume that their testimonies are being unduly suppressed.

By ruling that we do not find a sufficiently compelling reason to compel the taking of the testimonies of these alleged expert witnesses in relation to their serious objections to the power plant project, we do not foreclose the possibility that their testimonies could later on be presented, in a proper case, to more directly, specifically and sufficiently assail the environmental soundness of the project and establish the requisite magnitude of actual or threatened environmental damage, if indeed present. After all, their sense of civic duty may well prevail upon them to voluntarily testify, if there are truly sufficient reasons to stop the project, above and beyond their inadequate claims in the Final Report that the project should not be pursued. As things now stand, however, we have insufficient bases to compel their testimonies for the reasons already proffered.

The alleged admissions of grave environmental damage in the EIS of the project.

In their Omnibus Motions for Clarification and Reconsideration before the appellate court and Petition for Review before this Court, the Casiño Group belatedly claims that the statements in the EIS prepared by RP Energy established the significant negative environmental impacts of the project. They argue in this manner:

Acid Rain

35. According to RP Energy’s Environmental Impact Statement for its proposed 2 x 150 MW Coal-Fired Thermal Power Plant Project, acid rain may occur in the combustion of coal, to wit –

x x x x

During the operation phase, combustion of coal will result in emissions of particulates SOx and NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise to health problems for residents within the impact area.

x x x x

Asthma Attacks

36. The same EPRMP¹⁴³ mentioned the incidence of asthma attacks [as a] result of power plant operations, to wit –

x x x x

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to suspended particulates from plant operations.¹⁴⁴

RP Energy, however, counters that the above portions of the EIS were quoted out of context. As to the subject of acid rain, the EIS states in full:

Operation

During the operation phase, combustion of coal will result in emissions of particulates, SOx and NOx. This may contribute to the occurrence of acid rain due to elevated SO2 levels in the atmosphere. High levels of NO2 emissions may give rise to health problems for residents within the impact area. Emissions may also have an effect on vegetation (Section 4.1.4.2). However, the use of CFBC technology is a built-in measure that results in reduced emission concentrations. SOx emissions will be minimised by the inclusion of a desulfurisation process, whilst NOx emissions will be reduced as the coal is burned at a temperature lower than that required to oxidise nitrogen.¹⁴⁵ (Emphasis supplied)

As to the subject of asthma attacks, the EIS states in full:

The incidence of asthma attacks among residents in the vicinity of the project site may increase due to exposure to suspended particulates from plant operations. Coal and ash particulates may also become suspended and dispersed into the air during unloading and transport, depending on wind speed and direction. However, effect on air quality due to windblown coal particulates will be insignificant as the coal handling system will have enclosures (i.e. enclosed conveyors and coal dome) to eliminate the exposure of coal to open air, and therefore greatly reduce the potential for particulates from being carried away by wind (coal handling systems, Section 3.4.3.3). In addition, the proposed process will include an electrostatic precipitator that will remove fly ash from the flue gas prior to its release through the stacks, and so particulates emissions will be minimal.¹⁴⁶ (Emphasis supplied)

We agree with RP Energy that, while the EIS discusses the subjects of acid rain and asthma attacks, it goes on to state that there are mitigating measures that will be put in place to prevent these ill effects. Quite clearly, the Casiño Group quoted piecemeal the EIS in such a way as to mislead this Court as to its true and full content.

We deplore the way the Casiño Group has argued this point and we take this time to remind it that litigants should not trifle with court processes. Along the same lines, we note how the Casiño Group has made serious allegations in its Petition for Writ of kalikasan but failed to substantiate the same in the course of the proceedings before the appellate court. In particular, during the preliminary conference of this case, the Casiño Group expressly abandoned its factual claims on the alleged grave environmental damage that will be caused by the power plant (i.e., air, water and land pollution) and, instead, limited itself to legal issues regarding the alleged non-compliance of RP Energy with certain laws and rules in the procurement of the ECC.¹⁴⁷ We also note how the Casiño Group failed to comment on the subject Petitions before this Court, which led this Court to eventually dispense with its comment.¹⁴⁸ We must express our disapproval over the way it has prosecuted its claims, bordering as it does on trifling with court processes. We deem it proper, therefore, to admonish it to be more circumspect in how it prosecutes its claims.

In sum, we agree with the appellate court that the Casiño Group failed to substantiate its claims that the construction and operation of the power plant will cause environmental damage of the magnitude contemplated under the writ of kalikasan. The evidence it presented is inadequate to establish the factual bases of its claims.

II.

Whether the ECC is invalid for lack of signature of Mr. Luis Miguel Aboitiz (Mr. Aboitiz), as representative of RP Energy, in the Statement of Accountability of the ECC.

The appellate court ruled that the ECC is invalid because Mr. Aboitiz failed to sign the Statement of Accountability portion of the ECC.

We shall discuss the correctness of this ruling on both procedural and substantive grounds.

Procedurally, we cannot fault the DENR for protesting the manner by which the appellate court resolved the issue of the aforesaid lack of signature. We agree with the DENR that this issue was not among those raised by the Casiño Group in its Petition for Writ of kalikasan.¹⁴⁹ What is more, this was not one of the triable issues specifically set during the preliminary conference of this case.¹⁵⁰

How then did the issue of lack of signature arise?

A review of the voluminous records indicates that the matter of the lack of signature was discussed, developed or surfaced only in the course of the hearings, specifically, on clarificatory questions from the appellate court, to wit:

J. LEAGOGO: I would also show to you your ECC, that’s page 622 of the rollo. I am showing to you this Environmental Compliance Certificate dated December 22, 2008 issued by Sec. Jose L. Atienza, Jr. of the DENR. This is your “Exhibit “18.” Would you like to go over this? Are you familiar with this document?

MS. MERCADO: Yes, it[’]s my Annex “3,” Your Honor.

J. LEAGOGO: I would like to refer you to page 3 of the ECC dated December 22, 2008. Page 2 refers to the Environmental Compliance Certificate, ECC Ref. No. 0804-011-4021. That’s page 2 of the letter dated December 22, 2008. And on page 3, Dr. Julian Amador recommended approval and it was approved by Sec. Atienza. You see that on page 3?

MS. MERCADO: Yes, Your Honor.

J. LEAGOGO: Okay. On the same page, page 3, there’s a Statement of Accountability.

MS. MERCADO: Yes, Your Honor.

J. LEAGOGO: Luis, who is Luis Miguel Aboitiz?

MS. MERCADO: During that time he was the authorized representative of RP Energy, Your Honor.

J. LEAGOGO: Now, who is the authorized representative of RP Energy

MS. MERCADO: It would be Mr. Aaron Domingo, I believe.

J. LEAGOGO: Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability?

Because the Statement of Accountability says, “Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in complying with all conditions in this Environmental Compliance Certificate [ECC][.]” Will you tell this Court why this was not signed?

MS. MERCADO: It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I believe, to the lawyers. This copy was not signed because during….

J. LEAGOGO: But this is your exhibit, this is your Exhibit “18” and this is not signed. Do you agree with me that your Exhibit “18” is not signed by Mr. Aboitiz?

MS. MERCADO: That’s correct, Your Honor.¹⁵¹

We find this line of questioning inadequate to apprise the parties that the lack of signature would be a key issue in this case; as in fact it became decisive in the eventual invalidation of the ECC by the appellate court.

Concededly, a court has the power to suspend its rules of procedure in order to attain substantial justice so that it has the discretion, in exceptional cases, to take into consideration matters not originally within the scope of the issues raised in the pleadings or set during the preliminary conference, in order to prevent a miscarriage of justice. In the case at bar, the importance of the signature cannot be seriously doubted because it goes into the consent and commitment of the project proponent to comply with the conditions of the ECC, which is vital to the protection of the right to a balanced and healthful ecology of those who may be affected by the project.

Nonetheless, the power of a court to suspend its rules of procedure in exceptional cases does not license it to foist a surprise on the parties in a given case. To illustrate, in oral arguments before this Court, involving sufficiently important public interest cases, we note that individual members of the Court, from time to time, point out matters that may not have been specifically covered by the advisory (the advisory delineates the issues to be argued and decided). However, a directive is given to the concerned parties to discuss the aforesaid matters in their memoranda. Such a procedure ensures that, at the very least, the parties are apprised that the Court has taken an interest in such matters and may adjudicate the case on the basis thereof. Thus, the parties are given an opportunity to adequately argue the issue or meet the issue head-on. We, therefore, find that the appellate court should have, at the very least, directed RP Energy and the DENR to discuss and elaborate on the issue of lack of signature in the presentation of their evidence and memoranda, before making a definitive ruling that the lack thereof invalidated the ECC. This is in keeping with the basic tenets of due process.

At any rate, we shall disregard the procedural defect and rule directly on whether the lack of signature invalidated the ECC in the interest of substantial justice.

The laws governing the ECC, i.e., Presidential Decree No. (PD) 1151 and PD 1586, do not specifically state that the lack of signature in the Statement of Accountability has the effect of invalidating the ECC. Unlike in wills or donations, where failure to comply with the specific form prescribed by law leads to its nullity,¹⁵² the applicable laws here are silent with respect to the necessity of a signature in the Statement of Accountability and the effect of the lack thereof. This is, of course, understandable because the Statement of Accountability is a mere off-shoot of the rule-making powers of the DENR relative to the implementation of PD 1151 and PD 1586. To determine, therefore, the effect of the lack of signature, we must look at the significance thereof under the Environmental Impact Assessment (EIA) Rules of the DENR and the surrounding circumstances of this case.

To place this issue in its proper context, a helpful overview of the stages of the EIA process, taken from the Revised Manual, is reproduced below:

Figure 1-3 Overview of Stages of the Philippine EIA Process¹⁵³

1.0 SCREENING

Screening determines if a project is covered or not covered by the PEISS.¹⁵⁴ If a project is covered, screening further determines what document type the project should prepare to secure the needed approval, and what the rest of the requirements are in terms of EMB office of application, endorsing and decision authorities, duration of processing.

2.0 SCOPING

Scoping is a Proponent-driven multi-sectoral formal process of determining the focused Terms of Reference of the EIA Study. Scoping identifies the most significant issues/impacts of a proposed project, and then, delimits the extent of baseline information to those necessary to evaluate and mitigate the impacts. The need for and scope of an Environmental Risk Assessment (ERA) is also done during the scoping session. Scoping is done with the local community through Public Scoping and with a third party EIA Review Committee (EIARC) through Technical Scoping, both with the participation of the DENR-EMB. The process results in a signed Formal Scoping Checklist by the review team, with final approval by the EMB Chief.

EIA STUDY and 3.0 REPORT PREPARATION

The EIA Study involves a description of the proposed project and its alternatives, characterization of the project environment, impact identification and prediction, evaluation of impact significance, impact mitigation, formulation of Environmental Management and Monitoring Plan, with corresponding cost estimates and institutional support commitment. The study results are presented in an EIA Report for which an outline is prescribed by EMB for every major document type.

EIA REPORT 4.0 REPORT and EVALUATION

Review of EIA Reports normally entails an EMB procedural screening for compliance with minimum requirements specified during Scoping, followed by a substantive review of either composed third party experts commissioned by EMB as the EIA Review Committee for PEIS/EIS-based applications, or DENR/EMB internal specialists, the Technical Committee, for IEE-based applications. EMB evaluates the EIARC recommendations and the public’s inputs during public consultations/hearings in the process of recommending a decision on the application. The EIARC Chair signs EIARC recommendations including issues outside the mandate of the EMB. The entire EIA review and evaluation process is summarized in the Review Process Report (RPR) of the EMB, which includes a draft decision document.

5.0 DECISION MAKING

Decision Making involves evaluation of EIA recommendations and the draft decision document, resulting to the issuance of an ECC, CNC or Denial Letter. When approved, a covered project is issued its certificate of Environmental Compliance Commitment (ECC) while an application of a non-covered project is issued a Certificate of Non-Coverage (CNC). Endorsing and deciding authorities are designated by AO 42, and further detailed in this Manual for every report type. Moreover, the Proponent signs a sworn statement of full responsibility on implementation of its commitments prior to the release of the ECC. The ECC is then transmitted to concerned LGUs and other GAs for integration into their decision-making process. The regulated part of EIA Review is limited to the processes within EMB control. The timelines for the issuance of decision documents provided for in AO 42 and DAO 2003-30 are applicable only from the time the EIA Report is accepted for substantive review to the time a decision is issued on the application.

MONITORING. 6.0 VALIDATION, and EVALUATION/ AUDIT

Monitoring, Validation and Evaluation/Audit stage assesses performance of the Proponent against the ECC and its commitments in the Environmental Management and Monitoring Plans to ensure actual impacts of the project are adequately prevented or mitigated.

The signing of the Statement of Accountability takes place at the Decision-Making Stage. After a favorable review of its ECC application, the project proponent, through its authorized representative, is made to sign a sworn statement of full responsibility on the implementation of its commitments prior to the official release of the ECC.

The definition of the ECC in the Revised Manual highlights the importance of the signing of the Statement of Accountability:

Environmental Compliance Certificate (ECC) - a certificate of Environmental Compliance Commitment to which the Proponent conforms with, after DENR-EMB explains the ECC conditions, by signing the sworn undertaking of full responsibility over implementation of specified measures which are necessary to comply with existing environmental regulations or to operate within best environmental practices that are not currently covered by existing laws. It is a document issued by the DENR/EMB after a positive review of an ECC application, certifying that the Proponent has complied with all the requirements of the EIS System and has committed to implement its approved Environmental Management Plan. The ECC also provides guidance to other agencies and to LGUs on EIA findings and recommendations, which need to be considered in their respective decision-making process.¹⁵⁷ (Emphasis supplied)

As can be seen, the signing of the Statement of Accountability is an integral and significant component of the EIA process and the ECC itself. The evident intention is to bind the project proponent to the ECC conditions, which will ensure that the project will not cause significant negative environmental impacts by the “implementation of specified measures which are necessary to comply with existing environmental regulations or to operate within best environmental practices that are not currently covered by existing laws.” Indeed, the EIA process would be a meaningless exercise if the project proponent shall not be strictly bound to faithfully comply with the conditions necessary to adequately protect the right of the people to a healthful and balanced ecology.

Contrary to RP Energy’s position, we, thus, find that the signature of the project proponent’s representative in the Statement of Accountability is necessary for the validity of the ECC. It is not, as RP Energy would have it, a mere formality and its absence a mere formal defect. The question then is, was the absence of the signature of Mr. Aboitiz, as representative of RP Energy, in the Statement of Accountability sufficient ground to invalidate the ECC?

Viewed within the particular circumstances of this case, we answer in the negative.

While it is clear that the signing of the Statement of Accountability is necessary for the validity of the ECC, we cannot close our eyes to the particular circumstances of this case. So often have we ruled that this Court is not merely a court of law but a court of justice. We find that there are several circumstances present in this case which militate against the invalidation of the ECC on this ground.

We explain.

First, the reason for the lack of signature was not adequately taken into consideration by the appellate court. To reiterate, the matter surfaced during the hearing of this case on clarificatory questions by the appellate court, viz:

J. LEAGOGO: Please tell the Court why this was not signed by Mr. Luis Miguel Aboitiz, the Statement of Accountability? Because the Statement of Accountability says, “Mr. Luis Miguel Aboitiz, Director, representing Redondo Peninsula Energy with office address located at 110 Legaspi Street, Legaspi Village, Makati City, takes full responsibility in complying with all conditions in this Environmental Compliance Certificate [ECC][.]” Will you tell this Court why this was not signed? MS. MERCADO: It was signed, Your Honor, but this copy wasn’t signed. My apologies, I was the one who provided this, I believe, to the lawyers. This copy was not signed because during… J. LEAGOGO: But this is your exhibit, this is your Exhibit “18” and this is not signed. Do you agree with me that your Exhibit “18” is not signed by Mr. Aboitiz? MS. MERCADO: That’s correct, Your Honor.¹⁵⁸ (Emphasis supplied)

Due to the inadequacy of the transcript and the apparent lack of opportunity for the witness to explain the lack of signature, we find that the witness’ testimony does not, by itself, indicate that there was a deliberate or malicious intent not to sign the Statement of Accountability.

Second, as previously discussed, the concerned parties to this case, specifically, the DENR and RP Energy, were not properly apprised that the issue relative to the lack of signature would be decisive in the determination of the validity of the ECC. Consequently, the DENR and RP Energy cannot be faulted for not presenting proof during the course of the hearings to squarely tackle the issue of lack of signature.

Third, after the appellate court ruled in its January 30, 2013 Decision that the lack of signature invalidated the ECC, RP Energy attached, to its Motion for Partial Reconsideration, a certified true copy of the ECC, issued by the DENR-EMB, which bore the signature of Mr. Aboitiz. The certified true copy of the ECC showed that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008.¹⁵⁹

The authenticity and veracity of this certified true copy of the ECC was not controverted by the Casiño Group in its comment on RP Energy’s motion for partial reconsideration before the appellate court nor in their petition before this Court. Thus, in accordance with the presumption of regularity in the performance of official duties, it remains uncontroverted that the ECC on file with the DENR contains the requisite signature of Mr. Aboitiz in the Statement of Accountability portion.

As previously noted, the DENR and RP Energy were not properly apprised that the issue relative to the lack of signature would be decisive in the determination of the validity of the ECC. As a result, we cannot fault RP Energy for submitting the certified true copy of the ECC only after it learned that the appellate court had invalidated the ECC on the ground of lack of signature in its January 30, 2013 Decision.

We note, however, that, as previously discussed, the certified true copy of the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008 or two days after the ECC’s official release on December 22, 2008. The afore-discussed rules under the Revised Manual, however, state that the proponent shall sign the sworn statement of full responsibility on implementation of its commitments prior to the release of the ECC. It would seem that the ECC was first issued, then it was signed by Mr. Aboitiz, and thereafter, returned to the DENR to serve as its file copy. Admittedly, there is lack of strict compliance with the rules although the signature is present. Be that as it may, we find nothing in the records to indicate that this was done with bad faith or inexcusable negligence because of the inadequacy of the evidence and arguments presented, relative to the issue of lack of signature, in view of the manner this issue arose in this case, as previously discussed. Absent such proof, we are not prepared to rule that the procedure adopted by the DENR was done with bad faith or inexcusable negligence but we remind the DENR to be more circumspect in following the rules it provided in the Revised Manual. Thus, we rule that the signature requirement was substantially complied with pro hac vice.

Fourth, we partly agree with the DENR that the subsequent letter-requests for amendments to the ECC, signed by Mr. Aboitiz on behalf of RP Energy, indicate its implied conformity to the ECC conditions. In practical terms, if future litigation should occur due to violations of the ECC conditions, RP Energy would be estopped from denying its consent and commitment to the ECC conditions even if there was no signature in the Statement of Accountability. However, we note that the Statement of Accountability precisely serves to obviate any doubt as to the consent and commitment of the project proponent to the ECC conditions. At any rate, the aforesaid letter-requests do additionally indicate RP Energy’s conformity to the ECC conditions and, thus, negate a pattern to maliciously evade accountability for the ECC conditions or to intentionally create a “loophole” in the ECC to be exploited in a possible future litigation over non-compliance with the ECC conditions.

In sum, we rule that the appellate court erred when it invalidated the ECC on the ground of lack of signature of Mr. Aboitiz in the ECC’s Statement of Accountability relative to the copy of the ECC submitted by RP Energy to the appellate court. While the signature is necessary for the validity of the ECC, the particular circumstances of this case show that the DENR and RP Energy were not properly apprised of the issue of lack of signature in order for them to present controverting evidence and arguments on this point, as the matter only developed during the course of the proceedings upon clarificatory questions from the appellate court. Consequently, RP Energy cannot be faulted for submitting the certified true copy of the ECC only after it learned that the ECC had been invalidated on the ground of lack of signature in the January 30, 2013 Decision of the appellate court.

The certified true copy of the ECC, bearing the signature of Mr. Aboitiz in the Statement of Accountability portion, was issued by the DENR-EMB and remains uncontroverted. It showed that the Statement of Accountability was signed by Mr. Aboitiz on December 24, 2008. Although the signing was done two days after the official release of the ECC on December 22, 2008, absent sufficient proof, we are not prepared to rule that the procedure adopted by the DENR was done with bad faith or inexcusable negligence. Thus, we rule that the signature requirement was substantially complied with pro hac vice.

III.

Whether the first and second amendments to the ECC are invalid for failure to undergo a new environmental impact assessment (EIA) because of the utilization of inappropriate EIA documents. Upholding the arguments of the Casiño Group, the appellate court ruled that the first and second amendments to the ECC were invalid because the ECC contained an express restriction that any expansion of the project beyond the project description shall be the subject of a new EIA. It found that both amendments failed to comply with the appropriate EIA documentary requirements under DAO 2003-30 and the Revised Manual. In particular, it found that the Environmental Performance Report and Management Plan (EPRMP) and Project Description Report (PDR), which RP Energy submitted to the DENR, relative to the application for the first and second amendments, respectively, were not the proper EIA document type. Hence, the appellate court ruled that the aforesaid amendments were invalid.

Preliminarily, we must state that executive actions carry presumptive validity so that the burden of proof is on the Casiño Group to show that the procedure adopted by the DENR in granting the amendments to the ECC were done with grave abuse of discretion. More so here because the administration of the EIA process involves special technical skill or knowledge which the law has specifically vested in the DENR.

After our own examination of DAO 2003-30 and the Revised Manual as well as the voluminous EIA documents of RP Energy appearing in the records of this case, we find that the appellate court made an erroneous interpretation and application of the pertinent rules.

We explain.

As a backgrounder, PD 1151 set the Philippine Environment Policy. Notably, this law recognized the right of the people to a healthful environment.¹⁶⁰ Pursuant thereto, in every action, project or undertaking, which significantly affects the quality of the environment, all agencies and instrumentalities of the national government, including government-owned or -controlled corporations, as well as private corporations, firms, and entities were required to prepare, file and include a statement (i.e., Environmental Impact Statement or EIS) containing: (a) the environmental impact of the proposed action, project or undertaking; (b) any adverse environmental effect which cannot be avoided should the proposal be implemented; (c) alternative to the proposed action; (d) a determination that the short-term uses of the resources of the environment are consistent with the maintenance and enhancement of the long-term productivity of the same; and (e) whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such use and commitment are warranted.¹⁶¹ To further strengthen and develop the EIS, PD 1586 was promulgated, which established the Philippine Environmental Impact Statement System (PEISS). The PEISS is “a systems-oriented and integrated approach to the EIS system to ensure a rational balance between socio-economic development and environmental protection for the benefit of present and future generations.”¹⁶² The ECC requirement is mandated under Section 4 thereof:

SECTION 4. Presidential Proclamation of Environmentally Critical Areas and Projects. The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. x x x (Emphasis supplied)

The PEISS consists of the Environmental Impact Assessment (EIA) process, which is mandatory for private or public projects that may significantly affect the quality of the environment. It involves evaluating and predicting the likely impacts of the project on the environment, designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community’s welfare.¹⁶³

PD 1586 was implemented by DAO 2003-30 which, in turn, set up a system or procedure to determine when a project is required to secure an ECC and when it is not. When an ECC is not required, the project proponent procures a Certificate of Non-Coverage (CNC).¹⁶⁴ As part of the EIA process, the project proponent is required to submit certain studies or reports (i.e., EIA document type) to the DENR-EMB, which will be used in the review process in assessing the environmental impact of the project and the adequacy of the corresponding environmental management plan or program to address such environmental impact. This will then be part of the bases to grant or deny the application for an ECC or CNC, as the case may be. Table 1-4 of the Revised Manual summarizes the required EIA document type for each project category. It classifies a project as belonging to group I, II, III, IV or V, where: I - Environmentally Critical Projects (ECPs) in either Environmentally Critical Area (ECA) or Non-Environmentally Critical Area (NECA), II - Non-Environmentally Critical Projects (NECPs) in ECA, III - NECPs in NECA, IV - Co-located Projects, and V - Unclassified Projects. The aforesaid table then further classifies a project, as pertinent to this case, as belonging to category A, B or C, where:

A - new; B - existing projects for modification or re-start up; and C - operating projects without an ECC.

Finally, the aforesaid table considers whether the project is single or co-located.¹⁶⁵ After which, it states the appropriate EIA document type needed for the application for an ECC or CNC, as the case may be.

The appropriate EIA document type vis-à-vis a particular project depends on the potential significant environmental impact of the project. At the highest level would be an ECP, such as the subject project. The hierarchy of EIA document type, based on comprehensiveness and detail of the study or report contained therein, insofar as single projects are concerned, is as follows:

1. Environmental Impact Statement¹⁶⁶ (EIS), 2. Initial Environmental Examination¹⁶⁷ (IEE) Report, 3. Initial Environmental Examination¹⁶⁸ (IEE) Checklist Report, 4. Environmental Performance Report and Management Plan¹⁶⁹ (EPRMP), and 5. Project Description¹⁷⁰ (PD) or Project Description Report (PDR). Thus, in the course of RP Energy’s application for an ECC, it was required by the DENR-EMB to submit an EIS because the subject project is: an ECP, new and a single project. The present controversy, however, revolves around, not an application for an ECC, but amendments thereto. RP Energy requested the subject first amendment to its ECC due to its desire to modify the project design through the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement and a 230-kV double transmission line. The DENR-EMB determined that this was a major amendment and, thus, required RP Energy to submit an EPRMP. The Casiño Group argued, and the appellate court sustained, that an EPRMP is not the correct EIA document type based on the definition of an EPRMP in DAO 2003-30 and the Revised Manual. In DAO 2003-30, an EPRMP is defined as:

Environmental Performance Report and Management Plan (EPRMP) — documentation of the actual cumulative environmental impacts and effectiveness of current measures for single projects that are already operating but without ECC's, i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would suffice;¹⁷¹ (Emphasis supplied)

Further, the table in Section 5 of DAO 2003-30 states that an EPRMP is required for “A-2: Existing and to be expanded (including undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion) and A-3: Operating without ECC.” On the other hand, the Revised Manual delineates when an EPRMP is the proper EIA document type, thus:

For operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations, or for projects operating without an ECC but applying to secure one to comply with PD 1586 regulations, the appropriate document is not an EIS but an EIA Report incorporating the project’s environmental performance and its current Environmental Management Plan. This report is x x x an x x x Environmental Performance Report and Management Plan (EPRMP) for single project applications x x x¹⁷² (Emphasis supplied)

In its “Glossary,” the Revised Manual defines an EPRMP as:

Environmental Performance Report and Management Plan (EPRMP) - documentation of the actual cumulative environmental impacts and effectiveness of current measures for single projects that are already operating but without ECCs.¹⁷³ (Emphasis supplied)

Finally, Table 1-4, in the Revised Manual, states that an EPRMP is required for “Item I-B: Existing Projects for Modification or Re-start up (subject to conditions in Annex 2-1c) and I-C: Operating without ECC.” From these definitions and tables, an EPRMP is, thus, the required EIA document type for an ECP-single project which is:

1. Existing and to be expanded (including undertakings that have stopped operations for more than 5 years and plan to re-start with or without expansion); 2. Operating but without ECCs;

3. Operating projects with previous ECCs but planning or applying for clearance to modify/expand or re-start operations; and

4. Existing projects for modification or re-start up.

It may be observed that, based from the above, DAO 2003-30 and the Revised Manual appear to use the terms “operating” and “existing” interchangeably. In the case at bar, the subject project has not yet been constructed although there have been horizontal clearing operations at the project site. On its face, therefore, the theory of the Casiño Group, as sustained by the appellate court — that the EPRMP is not the appropriate EIA document type— seems plausible because the subject project is not: (1) operating/existing with a previous ECC but planning or applying for modification or expansion, or (2) operating but without an ECC. Instead, the subject project is an unimplemented or a non-implemented, hence, non-operating project with a previous ECC but planning for modification or expansion. The error in the above theory lies in the failure to consider or trace the applicable provisions of DAO 2003-30 and the Revised Manual on amendments to an ECC. The proper starting point in determining the validity of the subject first amendment, specifically, the propriety of the EIA document type (i.e., EPRMP) which RP Energy submitted in relation to its application for the aforesaid amendment, must of necessity be the rules on amendments to an ECC.¹⁷⁴ This is principally found in Section 8.3, Article II of DAO 2003-03, viz:

8.3 Amending an ECC

Requirements for processing ECC amendments shall depend on the nature of the request but shall be focused on the information necessary to assess the environmental impact of such changes.

8.3.1. Requests for minor changes to ECCs such as extension of deadlines for submission of post-ECC requirements shall be decided upon by the endorsing authority.

8.3.2. Requests for major changes to ECCs shall be decided upon by the deciding authority.

8.3.3. For ECCs issued pursuant to an IEE or IEE checklist, the processing of the amendment application shall not exceed thirty (30) working days; and for ECCs issued pursuant to an EIS, the processing shall not exceed sixty (60) working days. Provisions on automatic approval related to prescribed timeframes under AO 42 shall also apply for the processing of applications to amend ECCs. (Emphasis supplied)

Implementing the afore-quoted section, the Revised Manual pertinently states in Section 2.2, paragraph 16:

16) Application Process for ECC Amendments

Figure 2-4 presents how Proponents may request for minor or major changes in their ECCs. Annex 2-1c provides a decision chart for the determination of requirements for project modifications, particularly for delineating which application scenarios will require EPRMP (which will be subject to Figure 2-1 process) or other support documentations (which will be subject to Figure 2-4 process).

Figure 2-4, in turn, provides:

Figure 2-4. Flowchart on Request for ECC Amendments^175-177

Scenario 1: Request for Minor Amendments

Typographical error
Extension of deadlines for submission of post-ECC requirement/s
Extension of ECC validity
Change in company name/ownership
Decrease in land/project area or production capacity
Other amendments deemed “minor” at the discretion of the EMB CO/RO Director

1 [Start] Within three (3) years from ECC issuance (for projects not started) OR at any time during project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-EMB office a LETTER-REQUEST for ECC amendment, including data/information, reports or documents to substantiate the requested revisions.

↓

The ECC-endorsing EMB office assigns a Case Handler to evaluate the request

3 ↓

ECC-endorsing Authority decides on the Letter-Request, based on CH recommendation

Maximum Processing Time to Issuance of Decision

EMB CO	7 workdays
EMB RO	7 workdays

Scenario 2: Request for Major Amendments

Expansion of project area w/in catchment described in EIA
Increase in production capacity or auxiliary component of the original project
Change/s in process flow or technology
Addition of new product
Integration of ECCs for similar or dissimilar but contiguous projects (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
Revision/Reformatting of ECC Conditions
Other amendments deemed “major” at the discretion of the EMB CO/RO Director

1[Start] Within three (3) years from ECC issuance (for projects not started) OR at any time during project implementation, the Proponent prepares and submits to the ECC-endorsing DENR-EMB office a LETTER-REQUEST for ECC amendments, including data/information, reports or documents to substantiate the requested revisions.

For projects that have started implementation, EMB evaluates request based on Annex 2-1c for various scenarios of project modification. Documentary requirements may range from a Letter-Request to an EPRMP to the EMB CO/RO while for those with Programmatic ECC, a PEPRMP may need to be submitted to the EMB CO to support the request. It is important to note that for operating projects, the appropriate document is not an EIS but an EIA Report incorporating the project’s historical environmental performance and its current EMP, subject to specific documentary requirements detailed in Annex 2-1c for every modification scenario.

3 ↓

For EPRMP/PEPRMP-based requests, EMB forms a Technical/Review Committee to evaluate the request. For other requests, a Case Handler may solely undertake the evaluation. EMB CO and RO will process P/EPRMP for PECC/ECC under Groups I and II respectively. (Go to Figure 2-1)

4 ↓

ECC-endorsing/issuing Authority (per Table 1-4) decides on Letter Requests/EPRMP/PEPRMP/Other documents based on EMB CH and/or Tech/Review Committee recommendations.

Max Processing Time to Issuance of Decision

CO PEPRMP	CO EPRMP	RO PEPRMP	RO EPRMP
120 workdays	90 workdays	60 workdays	30 workdays

Other document applications: max 30 workdays (EMB CO and RO)

Noteworthy in the above, which is pertinent to the issue at hand, is that the amendment process squarely applies to projects not started, such as the subject project, based on the phrase “[w]ithin three (3) years from ECC issuance (for projects not started) x x x”.

Annex 2-1c, in turn, provides a “Decision Chart for Determination of Requirements For Project Modification.” We reproduce below the first three columns of Annex 2-1c, as are pertinent to the issue at hand:

ANNEX 2-1c

DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION¹⁷⁸

Proposed Modifications to the Current Project

Analysis of Proposed Modifications

Resulting Decision Document/Type of EIA Report Required

Operational projects, or those which have stopped for ≤ 5 years and plan to re-start

For Groups I and II EIS-based Projects with an ECC applying for modification

Expansion of land/project area w/in catchment or environment described in the original EIA Report

Since the modification will be in an area already described and evaluated in the original EIA Report, incremental impacts from additional land development will have been addressed in the approved EMP

ECC Amendment /Letter Request with brief description of activities in the additional area

Expansion of land/project area OUTSIDE catchment or environment described in the original EIA Report

It is assumed the modification proposal may have significant potential impacts due to absence of prior assessment as to how the project may affect the proposed expansion area

ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)

Increase in capacity or auxiliary component of the original project which will either not entail exceedance of PDR (non-covered project) thresholds or EMP & ERA can still address impacts & risks arising from modification

Non-exceedance of PDR (non covered project) threshold is assumed that impacts are not significant;

Modification scenario and decision process are applicable to both non-implemented and operating projects issued ECCs

ECC Amendment /Letter Request with brief description of additional capacity or component

Increase in capacity or auxiliary component of the original project which will either exceed PDR (non-covered project) thresholds, or EMP & ERA cannot address impacts and risks arising from modification

Exceedance of PDR (non-covered) threshold is assumed that impacts may be potentially significant, particularly if modification will result to a next higher level of threshold range

Modification scenario and decision process are applicable to both non-implemented and operating projects with or without issued ECCs

ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)

Change/s in process flow or technology

EMP and ERA can still address impacts & risks arising from modification

EMP and ERA cannot address impacts & risks arising from modificaion

ECC Amendment /Letter Request with brief process description

ECC Amendment /Environmental Performance Report and Management Plan (EPRMP)

Additional component or products which will enhance the environment (e.g. due to compliance to new stringent requirements) or lessen impacts on the environment (e.g. thru utilization of waste into new products)

Activity is directly lessening or mitigating the project’s impacts on the environment. However, to ensure there is no component in the modification which fall under covered project types, EMB will require disclosure of the description of the components and process with which the new product will be developed.

ECC Amendment /Letter Request with consolidated Project Description Report of new project component and integrated EMP

Downgrade project size or area or other units of measure of thresholds limits

No incremental adverse impacts; may result to lower project threshold or may result to non-coverage

From ECC Amendment to Relief of ECC Commitments (Conversion to CNC): /Letter-Request only

Conversion to new project type (e.g. bunker-fired plant to gas-fired)

Considered new application but with lesser data requirements since most facilities are established; environmental performance in the past will serve as baseline; However, for operating projects, there may be need to request for Relief from ECC Commitment prior to applying for new project type to ensure no balance of environmental accountabilities from the current project

New ECC /EIS

Integration of ECCs for similar or contiguous projects

(Note: Integration of ECCs is at the option of the Proponent to request/apply)

No physical change in project size/area; no change in process/technology but improved management of continuous projects by having an integrated planning document in the form or an integrated ECC (ECC conditions will be harmonized across projects; conditions relating to requirements within other agencies’ mandates will be deleted)

ECC Amendment /Letter Request with consolidated Project Description Report and integrated EMP

10.

Revision/

Reformatting of ECC Conditions

No physical change on the project but ECC conditions relating to requirements within other agencies’ mandates will be deleted

ECC Amendment /Letter Request only

We now apply these provisions to the case at bar.

To reiterate, the first amendment to the ECC was requested by RP Energy due to its planned change of project design involving the inclusion of a barge wharf, seawater intake breakwater, subsea discharge pipeline, raw water collection system, drainage channel improvement and a 230-kV double transmission line. The DENR-EMB determined¹⁷⁹ that the proposed modifications involved a major amendment because it will result in an increase in capacity or auxiliary component, as per Scenario 2, Item #2 of Figure 2-4:

Scenario 2: Request for Major Amendments

1. rollo (G.R. No. 207257), pp. 122-153; rollo (G.R. No. 207276), Volume I, pp. 13- 105; rollo (G.R. 207282), pp. 2-50; and rollo (G.R. No. 207366), pp. 117-149.

2. rollo (G.R. No. 207257), pp. 158-258; penned by Associate Justice Celia C. Librea-Leagogo and concurred in by Associate Justices Franchito N. Diamante and Melchor Quirino C. Sadang.

3. Id. at 259-266.

4. The Bases Conversion and Development Act of 1992.

5. rollo (G.R. No. 207257), p. 210.

6. Id.

7. Id. at 210-211.

8. Id. at 159.

9. Id.

10. Id. at 211.

11. Id.

12. rollo (G.R. No. 207276), Volume I, p. 24.

13. rollo (G.R. No. 207257), p. 160.

14. Id. at 167 and 211.

15. Id. at 160.

16. Id. at 213.

17. Id. at 179.

18. Id. at 167.

19. Id.

20. Id. at 211.

21. Id. at 165.

22. Id. at 216.

23. Id. at 165.

24. Id. at 216.

25. Id.

26. Id. at 160.

27. Id.

28. Id. at 159.

29. Id.

30. Id. at 179.

31. Id. at 159.

32. Id. at 163.

33. Id.

34. Id. at 161.

35. Id. at 160-161.

36. Id. at 162.

37. Id.

38. Id. at 170.

39. Id. at 170-172.

40. Id. at 173.

41. People’s Recovery Empowerment and Development Assistance

42. rollo (G.R. No. 207257), p. 175.

43. Id.

44. Id. at 178.

45. Id. at 184.

46. Id. at 187.

47. Id. at 190.

48. Id. at 195.

49. Id. at 199.

50. Id. at 203.

51. Id. at 178.

52. Id. at 198.

53. Id. at 239-247.

54. Id. at 236-239.

55. Id. at 239.

56. Id. at 222-228.

57. Id. at 230-236.

58. Id. at 213-216.

59. Id. at 216-222.

60. Id. at 213.

61. Id. at 230-236.

62. Id. at 222-230.

63. Id. at 223-224.

64. Id.

65. Id. at 247-248.

66. Id. at 260.

67. Id.

68. Id. at 262.

69. Id. at 260-261.

70. Id. at 259-266.

71. Id. at 261.

72. Id.

73. Id. at 262.

74. Id. at 264.

75. Id. at 262-263.

76. Id. at 265.

77. rollo (G.R. No. 207282), p. 26.

78. Id. at 27.

79. Id. at 27-28.

80. Id. at 29-36.

81. Id. at 39-44.

82. rollo (G.R. No. 207257), pp. 133-137.

83. Id. at 148-152.

84. Id. at 150-151.

85. Id. at 151-152.

86. Id. at 141.

87. Id. at 138-145.

88. Id. at 140.

89. Id. at 145-148.

90. rollo (G.R. No. 207366), pp. 134-137.

91. Id. at 136-137 and 140-141.

92. Id. at 141-142.

93. Id. at 142-147.

94. Id.

95. Id. at 138-139.

96. Id.

97. Id.

98. rollo (G.R. No. 207276), Volume I, pp. 32-37.

99. Id. at 37-41.

100. Id. at 41-43.

101. Id. at 52-77.

102. Id. at 78-87.

103. Id. at 87-102.

104. Id. at 44-52.

105. Rule 7, Part III, Rules of Procedure for Environmental Cases

106. A.M. No. 09-6-8-SC dated April 13, 2010

107. ARTICLE VIII, Section 5(5) of the Constitution provides: Section 5. The Supreme Court shall have the following powers: x x x x 5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

109. The Rationale and Annotation to the Rules of Procedure for Environmental Cases issued by the Supreme Court [hereafter Annotation], p. 133.

110. Annotation, p. 78.

111. Annotation, p. 78-79.

112. Annotation, p. 139.

113. Rollo (G.R. 207282), pp. 2-50.

114. See Rule 43, Rules of Court.

115. See Bangus Fry Fisherfolk v. Lanzanas, 453 Phil. 479, 494 (2003).

116. It should be noted that the Rules on the Writ of kalikasan were promulgated with due regard to the doctrine of exhaustion of administrative remedies and primary jurisdiction. (Annotation, p. 100).

117. Boracay Foundation v. The Province of Aklan, G.R. No. 196870, June 26, 2012, 674 SCRA 555, 604.

118. Annotation, p. 140.

119. CA rollo, Volume I, pp. 41-47.

120. Referred to as the Casiño Group in this case.

121. rollo (G.R. No. 207257), pp. 241-245.

122. rollo (G.R. No. 207276), Volume I, p. 474.

123. CA rollo, Volume XVI, pp. 5856-5857.

124. TSN, December 12, 2012, pp. 179-186.

125. RA 8749 entitled “An Act Providing for a Comprehensive Air Pollution Control Policy and for Other Purposes”; also known as “The Philippine Clean Air Act of 1999.”

126. Refers to ground level concentrations.

127. rollo (G.R. No. 207276), Volume I, p. 475.

128. TSN, December 5, 2012, pp. 162-164, 169.

129. CA rollo, Volume XV, pp. 5763-5765.

130. CA rollo, Volume XVI, p. 5857.

131. rollo (G.R. No. 207282), pp. 342-343.

132. TSN, December 12, 2012, pp. 171-174.

133. CA rollo, Volume XVI, p. 5859.

134. TSN, December 12, 2012, pp. 141-148.

135. Section 3(l), DAO 2003-30.

136. Salomon v. Intermediate Appellate Court, 263 Phil. 1068, 1077 (1990).

137. The appellate court noted, thus: However, while the CFB technology appears to be a better choice compared with the traditional technology for operating power plants, it cannot be declared, at this point in time, that the CFB technology to be used by RP Energy in its Power Plant project will not cause any environmental damage or harm. Sarkki, who is one of the members of the team that developed the CFB technology and an employee of Foster Wheeler (manufacturer of the CFB boilers) testified that: it depends on the kind of coal and the technology to be used in burning the coal; semirara coal is known to have very high fouling characteristics and it was not in the interest of RP Energy to utilize said coal; and high fouling means ash is melting in low temperature and collected on its surfaces and making it impossible to continue the operation of a boiler; RP Energy has not yet ordered any CFB boiler from Foster Wheeler, and manufacturing has not started because there is no finalized contract; and RP Energy is still finalizing its coal contract. Wong testified that he was not shown any coal supply agreement. Ouano testified that, per report, there are no coal and equipment supply agreements yet and that he recommended to RP Energy the Indonesian coal because it has much lower volatile matter and it is better than semirara coal. Mercado also testified that she did not see any coal supply agreement with a supplier. Evangelista testified that RP Energy already selected Foster Wheeler as the supplier for the Power Plant project's boiler but there is no purchase agreement yet in connection with the equipment to be used. Thus, since RP Energy has, as yet, no equipment purchase agreement in connection with its proposed CFB Coal-Fired Power Plant project nor a coal supply agreement that comply with the recommendations of the various engineers on CFB technology, there is no scientific certainty of its environmental effect. [rollo (G.R. No. 207257), pp. 245-246]

138. CA rollo, Volume I, pp. 127-129.

139. Id. at 131-132.

140. SEC. 6. Failure to settle. - If there is no full settlement, the judge shall: x x x x (l) Determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae); x x x

141. SEC. 12. Discovery Measures. — A party may file a verified motion for the following reliefs: (a) Ocular Inspection; order — The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. (b) Production or inspection of documents or things; order —The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties.

142. Annotation, p. 80.

143. Environmental Performance Report and Management Plan.

144. rollo (G.R. 207282), pp. 21-22.

145. CA rollo, Volume III, p. 847.

146. Id.

147. TSN, October 29, 2012, p. 82; see also issues for the Casiño Group in preliminary conference.

148. In its Resolution dated July 23, 2013, the Court required the adverse parties to comment within ten days from notice on the separate Petitions for Review on Certiorari in G.R. Nos. 207257, 207276, 207282 and 207366. Then in its Resolution dated April 1, 2014, the Court resolved to, among others, dispense with the filing of the comment of respondents Casiño, et al. (Casiño Group) in G.R. No. 207276. Additionally, the Court, among others, noted in its Resolution dated June 10, 2014, SBMA’s Manifestation and Motion to Resolve dated May 21, 2014 praying, among others, that respondents Casiño, et al. (Casiño Group) be deemed to have waived their right to file their comment with respect to the Petition for Review on Certiorari dated July 15, 2013 in G.R. No. 207366.

149. As earlier noted, the grounds raised by the Casiño Group in its Petition for Writ of kalikasan were limited to whether: (1) the power plant project would cause grave environmental damage; (2) it would adversely affect the health of the residents of the municipalities of Subic, Zambales, Morong, Hermosa, and the City of Olongapo; (3) the ECC was issued and the LDA entered into without the prior approval of the sanggunians concerned as required under Sections 26 and 27 of the Local Government Code (LGC); (4) the LDA was entered into without securing a prior certification from the NCIP as required under Section 59 of the IPRA Law; (5) Section 8.3 of DAO 2003-30 which allows amendments of ECCs is ultra vires because the DENR has no authority to decide on requests for amendments of previously issued ECCs in the absence of a new EIS; and (6) due to the nullity of Section 8.3 of DAO 2003-30, all amendments to RP Energy’s ECC are null and void.

150. As narrated earlier, the issues set during the preliminary conference were limited to: I. ISSUES A. Petitioners (Casiño Group) 1. Whether x x x the DENR Environmental Compliance Certificate (‘ECC’ x x x) in favor of RP Energy for a 2x150 MW Coal-Fired Thermal Power Plant Project (‘Power Plant,’ x x x) and its amendment to 1x300 MW Power Plant, and the Lease and Development Agreement between SBMA and RP Energy complied with the Certification Precondition as required under Section 59 of Republic Act No. 8371 or the Indigenous People’s Rights Act of 1997 (‘IPRA Law,’ x x x); 2. Whether x x x RP Energy can proceed with the construction and operation of the 1x300 MW Power Plant without prior consultation with and approval of the concerned local government units (‘LGUs,’ x x x), pursuant to Sections 26 and 27 of Republic Act No. 7160 or the Local Government Code; 3. Whether x x x Section 8.3 of DENR Administrative Order No. 2003-30 (‘DAO No. 2003-30,’ x x x) providing for the amendment of an ECC is null and void for being ultra vires; and 4. Whether x x x the amendment of RP Energy’s ECC under Section 8.3 of DAO No. 2003-30 is null and void. B. Respondent RP Energy 1. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked; 1.1 Whether x x x the same is valid until annulled; 2. Whether x x x petitioners exhausted their administrative remedies with respect to the amended ECC for the 1x300 MW Power Plant; 2.1 Whether x x x the instant Petition is proper; 3. Whether x x x RP Energy complied with all the procedures/requirements for the issuance of the DENR ECC and its amendment; 3.1 Whether x x x a Certificate of Non-Overlap from the National Commission on Indigenous Peoples is applicable in the instant case; 4. Whether x x x the LGU’s approval under Sections 26 and 27 of the Local Government Code is necessary for the issuance of the DENR ECC and its amendments, and what constitutes LGU approval; 5. Whether x x x there is a threatened or actual violation of environmental laws to justify the Petition; 5.1 Whether x x x the approved 1x300 MW Power Plant complied with the accepted legal standards on thermal pollution of coastal waters, air pollution, water pollution, and acid deposits on aquatic and terrestrial ecosystems; and 6. Whether x x x the instant Petition should be dismissed for failure to comply with the requirements of proper verification and certification of non-forum shopping with respect to some petitioners. C. Respondent DENR Secretary Paje 1. Whether x x x the issuance of the DENR ECC and its amendment in favor of RP Energy requires compliance with Section 59 of the IPRA Law, as well as Sections 26 and 27 of the Local Government Code; 2. Whether x x x Section 8.3 of DAO No. 2003-30 can be collaterally attacked in this proceeding; and 3. Whether x x x Section 8.3 of DAO No. 2003-30 is valid. Concededly, the issue as to “whether x x x RP Energy complied with all the procedures/ requirements for the issuance of the DENR ECC and its amendment” is broad enough to include the issue of the lack of signature. That this was, however, contemplated by the parties or the appellate court is negated by the context in which the issue arose, as will be discussed in what follows.

151. TSN, December 12, 2012, pp. 63-67.

152. See CIVIL CODE, Art. 745 and 749.

153. Revised Procedural Manual for DAO 2003-30 (Revised Manual), p. 15.

157. Revised Manual, p. 9 and Glossary, letter h; Section 3(d), Article I, DAO 2003-30.

158. TSN, December 12, 2012, pp. 65-67.

159. CA rollo, Volume XVII, pp. 7010-7011.

160. Section 3 of PD 1151 provides: SECTION 3. Right to a Healthy Environment. — In furtherance of these goals and policies, the Government recognizes the right of the people to a healthful environment. It shall be the duty and responsibility of each individual to contribute to the preservation and enhancement of the Philippine environment.

161. Section 4, PD 1151.

162. Section 1, Article I, DAO 2003-30.

163. Section 3(h), Article I,DAO 2003-30.

164. Under Section 3(a), Article I of DAO 2003-30, a CNC is “a certification issued by the EMB certifying that, based on the submitted project description, the project is not covered by the EIS System and is not required to secure an ECC.”

165. As distinguished from single projects, co-located projects/undertakings are defined under Section 3(b), Article I of DAO 2003-30 as “projects, or series of similar projects or a project subdivided to several phases and/or stages by the same proponent, located in contiguous areas.”

166. Section 3(k), Article I of DAO 2003-30 defines an EIS as a “document, prepared and submitted by the project proponent and/or EIA Consultant that serves as an application for an ECC. It is a comprehensive study of the significant impacts of a project on the environment. It includes an Environmental Management Plan/ Program that the proponent will fund and implement to protect the environment.”

167. Section 3(s), Article I of DAO 2003-30 defines an IEE as a “document similar to an EIS, but with reduced details and depth of assessment and discussion.”

168. Section 3(t), Article I of DAO 2003-30 defines an IEE Checklist Report as a “simplified checklist version of an IEE Report, prescribed by the DENR, to be filled up by a proponent to identify and assess a project's environmental impacts and the mitigation/enhancement measures to address such impacts.”

169. Section 3(p), Article I of DAO 2003-30 defines an EPRMP as a “documentation of the actual cumulative environmental impacts and effectiveness of current measures for single projects that are already operating but without ECC’s, i.e., Category A-3. For Category B-3 projects, a checklist form of the EPRMP would suffice.”

170. Section 3(x), Article I of DAO 2003-30 defines a PD as a “document, which may also be a chapter in an EIS, that describes the nature, configuration, use of raw materials and natural resources, production system, waste or pollution generation and control and the activities of a proposed project. It includes a description of the use of human resources as well as activity timelines, during the pre-construction, construction, operation and abandonment phases. It is to be used for reviewing co-located and single projects under Category C, as well as for Category D projects.”

171. Section 3(p), Article I, DAO 2003-30.

172. Section 1.0, paragraph 8 (b), Revised Manual.

173. Glossary, letter (t), Revised Manual.

174. Parenthetically, we must mention that the validity of the rules providing for amendments to the ECC was challenged by the Casiño Group on the ground that it is ultra vires before the appellate court. [It] argued that the laws governing the ECC do not expressly permit the amendment of an ECC. However, the appellate court correctly ruled that the validity of the rules cannot be collaterally attacked. Besides, the power of the DENR to issue rules on amendments of an ECC is sanctioned under the doctrine of necessary implication. Considering that the greater power to deny or grant an ECC is vested by law in the President or his authorized representative, the DENR, there is no obstacle to the exercise of the lesser or implied power to amend the ECC for justifiable reasons. This issue was no longer raised before this Court and, thus, we no longer tackle the same here.

175-177. Footnotes omitted.

178. Footnotes omitted.

179. rollo (G.R. No. 207257), pp. 150-151. (DENR’s Petition, pp. 29-30)

180. Underline supplied.

183. Emphasis supplied.

184. To illustrate the flexibility of the EIA documents used in the EIA process, we can look at the EPRMP itself. The contents of an EPRMP, under Section 5.2.5, Article II of DAO 2003-30, are as follows: 5.2.5. x x x The EPRMP shall contain the following: a. Project Description; b. Baseline conditions for critical environmental parameters; c. Documentation of the environmental performance based on the current/past environmental management measures implemented; d. Detailed comparative description of the proposed project expansion and/or process modification with corresponding material and energy balances in the case of process industries[;] and e. EMP based on an environmental management system framework and standard set by EMB. As previously demonstrated, the EPRMP is not just used for ECPs, which are operating but without an ECC or operating with a previous ECC but planning for expansion or re-start, but for major amendments to a non-implemented project with a previous ECC, such as the subject project. Section 5.2.5(c), however, requires that an EPRMP should contain “[d]ocumentation of the environmental performance based on the current/past environmental management measures implemented.” This would be inapplicable to a non-implemented project. Thus, the project proponent merely notes in the EPRMP that there are no current/past environmental management measures implemented because the project is not yet implemented. As can be seen, the use of the EPRMP is flexible enough to accommodate such different project types, whether implemented or not, for as long as the necessary information is obtained in order to assess the environmental impact of the proposed changes to the original project design/description.

185. Emphasis supplied.

186. CA rollo, Volume IV, pp. 1129-1132.

187. Excerpts from Section 4 of the EPRMP (“Baseline Environmental Conditions for Critical Environmental Parameters, Impact Assessment and Mitigation”) are reproduced below: 4.1 The Land 4.1.1 Existing Condition The proposed route of the transmission line will traverse grasslands with sloping terrain, ranging from 3-50% slopes as shown in Figure 30 and Figure 31. x x x 4.1.2 Impacts Construction of the transmission line components will include minimal civil and electrical works. Tower structures will be pre-assembled in a workshop and transported to designated locations for erection and linkage. Excavation and clearing activities will be minimal and short-term, whilst generated spoils will be low/negligible in terms of volume. x x x x 4.1.3 Mitigation Generated spoils will be used as backfill material for aesthetic rehabilitation and stabilisation, if necessary. Slope stabilisation, and inspection and testing of the transmission line components will be conducted prior to project turnover for quality assurance and structural integrity. Proper handling and transport of the tower structures, as well as safe practice for electrical works will be disseminated and complied with across all personnel and involved contractors. An integrated foundation system consisting of combined footings will be employed in order to ensure adequate footing embedment and tower stabilization. Soil stabilisation and slope protection measures will be implemented to significantly reduce erosion potential of mountain soil. Tower installation and related activities will only commence upon finalisation of agreement between the proponent and concerned stakeholders (i.e., regulatory agencies). Disputes and discussions over lease agreement and right-of-way permitting works will be placed through due legal process of the SBMA. x x x x 4.2 The Water x x x x 4.2.1 Existing Condition The Subic Bay is rich in marine biodiversity including coral reef areas, seagrass patches, fisheries and coastal resources. x x x 4.2.2 Impacts The additional RPE project facilities, except for the transmission line, will have impacts on water quality and ecology for both freshwater and marine components, as these will be located along the coastline or involve the use of freshwater resources. The construction phase entails earth-moving activities, both inland and offshore. The initial concern upon implementation of the project is the degradation of the reef area within the proposed RPE project site, resulting from high sediment influx either via soil erosion, surface run-off or re-suspension. x x x x 4.2.3 Mitigation The following mitigating measures may be applied in order to minimize the potential impacts of the proposed project on marine resources. Whilst these measures will aid in minimizing the perceived impacts, mortalities of coastal resources may still occur as individuals of different coral and seagrass species have different levels of environmental sensitivity. Likewise, mortalities may also be influenced by a variety of factors unrelated to the proposed project such as water temperature fluctuations due to climatic phenomenon. Placing mooring buoys within the area encompassed by offshore construction work would allow construction barges to dock onto them during the construction of the coal pier and other offshore project facilities. The mooring buoys will negate the need to use chain anchors to prevent these vessels from drifting towards the reef or seagrass areas. During the driving of the pier piles, the use of silt curtains to minimise suspended sediments from reaching the coral community will aid the chance of survival of many coral colonies. The coral community in the area is dominated by massive growth forms which are more resilient to sedimentation compared to branching colonies. Whilst this is true, these massive forms still have a maximum tolerance threshold, hence the use of mitigating measures is imperative. Sediment curtains will greatly improve the chances of survival of these corals during the construction phase by constraining the movement of liberated silt. The operators of construction equipment, as well as contractors, will need to be informed of the location of the fragile coral community and seagrass bed in the area, so that they will work in a manner that will minimise the effects on these areas. This condition can be included in their contracts. Alignment and/or integration of mitigations with the Subic Coastal Resources Management Plan. Overall, the primary impact that needs to be mitigated is sedimentation resulting from heavy equipment manoeuvring to construct the coal pier and other structures and from increased traffic in the project area due to vehicles working inland and construction barges working offshore. x x x x 4.3 The Air Baseline conditions for this module as reported in the EIS (GHD, 2008) are appropriate and sufficient to describe site conditions for the additional RPE components. A brief summary to highlight the key impacts and mitigation for this module are presented below. 4.3.1 Existing Condition The air shed of the proposed project site falls under the category of Type I climate, which is characterized by two pronounced seasons, generally dry season from December to May, and wet season from June to November. 4.3.2 Impacts Dust and noise generation resulting from earthmoving activities (i.e., excavation, scraping and leveling methods) is of significant concern. Concentration of suspended particulates in the atmosphere is likely to increase for the duration of the construction phase. Similarly, high noise levels within the immediate impact area will be experienced. 4.3.3 Mitigation The proponent will implement control measures addressed at reducing noise levels and dust concentrations. Regular wetting of construction grounds, as well as putting up perimeter wall around major construction areas will limit the re-suspension of dust. Installation of noise barriers (i.e., vegetation buffer, noise wall) around the construction area and noise reduction technology for vehicles and equipment (i.e., mufflers) will significantly reduce the impacts of construction noise to nearby communities. In addition, construction activities contributing to high-noise levels will be scheduled during daytime. x x x (CA rollo, Volume IV, pp. 1193-1194, 1200-1201, 1204)

188. Section 3(x), Article I, DAO 2003-30.

189. Section 1.0, paragraph 8 (a) and (b), Revised Manual.

190. Glossary, letter aa, Revised Manual.

191. rollo (G.R. No. 207257), pp. 151-152. (DENR’s Petition pp. 30-31)

192. Underline supplied.

193. Supra note 191.

196. rollo (G.R. No. 207282) p. 9. (Casiño Group Petition, p. 8)

197. CA rollo, Volume V, pp. 1444-1448.

198. The PDR states, in part: RPE now proposes to construct a single high-efficiency 300-MW (net) circulating-fluidized-bed coal-fired generating unit for Phase 1 of the project, instead of two less-efficient 150-MW units, the environmental impacts of which are unchanged from the original proposal. (CA rollo, Volume V, p. 1441)

199. rollo (G.R. No. 207257), p. 68.

200. Section 3(h), Article I, DAO 2003-30.

201. Rules and Regulations implementing Republic Act No. 8371, otherwise known as “The Indigenous Peoples’ Rights Act of 1997.”

202. Cruz v. Sec. of Environment & Natural Resources, 400 Phil. 904, 1012 (2000).

203. RA 8371, Section 2 (b).

204. (visited 27 November 2014).

205. (visited 27 November 2014).

206. Hanjin Heavy Industries and Construction

207. Article 1643 of the Civil Code provides: ARTICLE 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine years shall be valid.

208. This is the clear import of the definition of “ancestral domains” in Section 3(a) of the IPRA Law, viz: SECTION 3. Definition of Terms. — For purposes of this Act, the following terms shall mean: a) Ancestral Domains — Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; x x x (Emphasis supplied)

209. The following are the relevant constitutional provisions: Article II, Section 22: The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Article XII, Section 5: The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domain. ARTICLE XIV, Section 17: The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. ARTICLE XIII, Section 6: The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. Article XVI, Section 12: The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities. Article VI, Section 5(2): The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

210. RP Energy’s EIS dated September 2008 stated, in part: 4.4.1.1.4 Indigenous People The Aetas are acknowledged to be one of the earliest settlers in the municipality. Historically, as lowlanders came to Subic, Aetas were displaced and were forced to flee to the hinterlands. While a number of Aetas have managed to be integrated within the mainstream of development activities in the municipality, many have remained deprived of public services such as health, social welfare and basic education. Aeta families are scattered in some barangays in Subic, such as: Batiawan and Naugsol. There are no Aeta communities identified within the vicinity of the project areas.” (CA rollo, Volume III, p. 857)

211. This is the clear implication of the clause “except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations” in the definition of “ancestral domain,” in the IPRA Law viz: SECTION 3. Definition of Terms. — For purposes of this Act, the following terms shall mean: a) Ancestral Domains — Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators; x x x (Emphasis supplied)

212. Article 5 of the Civil Code provides: ARTICLE 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

213. The Certificate of Non-Overlap with Control No. RIII-CNO-12-10-0011 issued on 31 October 2012 stated: “THIS IS TO CERTIFY that based on the findings of the FBI Team in its report dated October 8, 2012 and submitted by Ms. Candida P. Cabinta, Provincial Officer, the applied site/s for Certification Precondition situated at Subic Bay Freeport Zone (SBFZ) Sitio Naglatore, Brgy. Cawag, Subic, Zambales covering an aggregate area of Thirty Eight (38.00) hectares more or less, does not affect/overlap with any ancestral domain. THIS CERTIFICATION is issued to SBMA-REDONDO PENINSULA ENERGY CORPORATION with office address at Unit 304 The Venue, Rizal Highway, Subic Bay Industrial Park, Phase I, Subic Bay Freeport Zone 2222 in connection with the application for 600 MW Circulating Fluidized Bed (CFB) Coal Fired Power Plant before the Ecology Center, Subic Bay Metropolitan Authority. x x x x (CA rollo, Volume XVI, p. 6495)

214. SECTION 59. Certification Precondition. — All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production-sharing agreement, without prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process. (Emphasis supplied)

215. The DENR, in assessing ECC applications, requires project proponents to conduct public participation/consultation. Section 5.3, Article II of DAO 2003-30 on public hearing/consultation requirements provides, in part: Proponents should initiate public consultations early in order to ensure that environmentally relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of the management plan. All public consultations and public hearings conducted during the EIA process are to be documented. x x x

216. In any event, there appears to be no good reason why the subject project should not comply with the prior consultations requirement under Section 26, in relation to Section 27, of the LGC. There would be no conflict with RA 7227 because prior consultations do not impair the power of the SBMA to approve or disapprove a project within the SSEZ, i.e. the results of the public consultations do not bind or compel the SBMA to either approve or disapprove the project or program. See discussion, infra.

217. Article X, Section 2 of the Constitution provides: The territorial and political subdivisions shall enjoy local autonomy.

218. Alvarez v. Picop, 538 Phil 348, 402-403 (2006).

219. Lina, Jr. v. Paño, 416 Phil. 438, 449-450 (2001).

220. Supra notes 15, 26, and 27.

221. RA 7227, Section 12(a).

222. 518 Phil 103 (2006).

223. Id. at124-125.

224. Subic Bay Freeport; also referred to as the SSEZ.

225. Section 11 of the “Rules and Regulations Implementing the Provisions Relative to the Subic Special Economic and Freeport Zone and the Subic Bay Metropolitan Authority Under Republic Act No. 7227, Otherwise Known as the ‘Bases Conversion and Development Act of 1992.”

226. III Records, Senate 8th Congress, 59th Session, 613 (January 29, 1992).

227. CA rollo, Volume XVII, p. 6893. (Motion for Reconsideration of SBMA)

228. TSN, October 29, 2012, pp. 47, 50-51.

229. G.R. No. 101083, July 30, 1993, 224 SCRA 792 (1993).

230. Note that in Item #8 of the “DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION,” a new EIS can be required for the amendment covered therein: 8./Conversion to new project type (e.g. bunker-fired plant to gas-fired)/Considered new application but with lesser data requirements since most facilities are established; environmental performance in the past will serve as baseline; However, for operating projects, there may be need to request for Relief from ECC Commitment prior to applying for new project type to ensure no balance of environmental accountabilities from the current project/New ECC /EIS

All referred documents: [1]